Lord Justice Laws : "From Homer to Socrates : The Rule of Law in Greek Literature" [2002] UKSpeech CVTIM (16 May 2002)

16 May 2002

I never had the pleasure of meeting Margaret Howard, for whom these lectures are named; I know only from what I have been told of her love of the law and of literature, and of her energetic and remarkable personality. I am sure, if I may say so, that these qualities have vividly survived her, for they are spectacularly present in her daughter Gillian, to whom I owe the signal honour of the invitation to give this lecture, and much kindness and generosity besides.

There is a common perception that whereas the Romans bequeathed a majestic inheritance of law, roads, and imperial administration, the Greeks merely gave us epic, tragedy, comedy, architecture, sculpture, painting, democracy, philosophy, political science and the beginnings of the physical sciences. This superficial judgment is very unfair to the Greeks. In this lecture I shall go a little way to redress the balance. I shall look at some of the things - only some - the Greeks have to tell us about law and the rule of law. Not so much the details of the Athenian courts; not the evidence about their substantive law; mostly, what they have to tell us, sometimes inadvertently, about the idea of the thing. I shall have something to say about juries, and the relationship between justice and democracy. For this we shall look mostly to Aristophanes. And I shall have something to say about the question, when is disobedience to the law justified. For this we shall look to Antigone, and to Socrates. But that is some distance off. I will start with something altogether more modest, something however that is a necessary handmaiden of every system of law worth the name: civil procedure. Through whose eyes shall we take a passing glance at this Cinderella of legal disciplines? Why, those of Homer. Not just any passage of Homer; but the mighty description of the shield of Achilles. The beginnings, then, of this impertinent and amateur odyssey lie in the Iliad.

More precisely, Iliad Book 18, lines 497-508. You will remember the story. Achilles had been sulking in his tent because Agamemnon had pinched his girlfriend Briseis. But then his companion Patroclus is killed in Book 16 by Hector. It was no great deed of arms on Hector's part. Patroclus had already had his helmet knocked off his head by the god Apollo, and then been wounded by a lesser player called Euphorbus before Hector ever got to him; a triple whammy if ever there was one. But that was not all. Patroclus had been wearing Achilles' armour. Hector had stripped it from his body. In Book 18 Achilles complains and grieves bitterly, weeping on the shoulders of his mother Thetis. And his mother says to him [Endnote i]

"But your beautiful burnished armour is in Trojan hands. Hector of the flashing helmet is swaggering about in it himself - not that he will enjoy it long, for he is very near to death. So do not think of throwing yourself into the fight before you see me here again. I will come back at sunrise tomorrow with a splendid set of armour from the Lord Hephaestus".

And Hephaestus, crippled blacksmith of the gods, set to with his twenty bellows blowing on the fire, with bronze, with tin, with gold and with silver, to make fresh armour for the hero Achilles. But first he fashioned a great and wonderful shield. Its glittering surfaces were decorated with many images, among them two beautiful cities. In one of these [Endnote ii]:

"... the men had flocked to the meeting-place, where a case had come up between two litigants, about the payment of compensation for a man who had been killed. The defendant claimed the right to pay in full and was announcing his intention to the people; but the other contested his claim and refused all compensation. Both parties insisted that the issue should be settled by a referee; and both were cheered by their supporters in the crowd, whom the heralds were attempting to silence. The Elders sat on the sacred bench, a semicircle of polished stone; and each, as he received the speaker's rod from the clear-voiced heralds, came forward in his turn to give his judgment staff in hand. Two talents of gold were displayed in the centre: they were the fee for the Elder whose exposition of the law should prove the best."

There have been different interpretations of the passage, and the difficulties are admirably and succinctly discussed by Douglas MacDowell in The Law in Classical Athens [Endnote iii]. Accepting E V Rieu's translation for present purposes, one is immediately struck by the puzzling scenario which the first part of the passage presents - the reverse of one's usual experience in the Royal Courts of Justice - that the guilty party wants to pay but the injured party refuses payment. We may assume, I suppose, that there was no procedure for paying money into court or any other analogue of Part 36 of the Civil Procedure Rules. But the answer to the conundrum is clear enough. Unless the bereaved family were prepared to accept recompense and so close the matter, there would ensue a blood-feud between the parties, between the family of the dead man and the family of his killer. That might continue for generations. If you travel today to the Mani, that most beautiful part of the southern Peloponnese, you can see the grim stone towers between which, in later ages, embattled clans exchanged withering and remorseless fire in pursuit of these very feuds; and in Albania they are recent history, illustrated by Kadare's acclaimed novel Broken April. In the vignette which Hephaestus fashioned on Achilles' shield, if the blood-feud was to be avoided, the killer's family had to offer cash or kind and the dead man's family had to accept it.

Now if on either hand the parties were entirely free to offer the recompense or not, and to accept or not, the legal order which the picture on the shield represents is no exemplar of the rule of law: the parties are mere volunteers to the law, not its bondsmen. It is as if today we had an ADR scheme, but no court system to which the dispute would have to be submitted if it was not settled.

But that is not quite what the picture on the shield tells us. What of the second part of the passage? Both parties want the matter decided by a judge or referee. If it was entirely up to them whether the case should be settled or proceed to institutionalised violence, there would be no role for judge or referee. Yet the Elders on the sacred bench, or at least the one who would collect the two golden talents by popular acclaim, were there to decide something. What was it? Not, presumably, the amount of the recompense: for the injured party was determined to accept nothing. Perhaps the issue was whether in principle the case ought to be settled by payment at all, or left to the justice of vengeance. Even if such a dispute could only be judicially determined if the parties, so to speak, submitted to the jurisdiction, it is evidence of the rule of law's beginnings: and in an era something like the 8^th century BC, which is I think broadly the period when most scholars believe the Homeric epics were crystallised in written form - although my faith in this relatively straightforward approach was somewhat shaken upon reading some weeks ago a letter to The Times penned by one of the deeper thinkers amongst the readership, who asserted that he had always understood that the Iliad and the Odyssey had been written by Homer, or if not, by someone else of the same name. There is of course no knowing how far the shield of Achilles goes back in oral tradition.

MacDowell thinks the most important question arising from this passage is, who will actually decide the case? Is it the senior Elder, perhaps a King, or at any rate one who presides over the others? Is it the Elder whose opinion the people think is best? Remember the two golden talents, apparently waiting to be collected by whichever Elder wins most acclaim for his opinion. Or is it just the majority of all the Elders? But I will not take time with this. MacDowell's view, favouring the second option - the judge is the one who gets the popular vote - throws up questions we still debate today, about the relationship between democracy and the rule of law. How far is the rule of law underpinned in any given case - how far should it be underpinned - by popular acclaim? We shall be drawn to reflect more acutely upon questions of this kind after looking at the second topic I wish to lay before you, to which I will come shortly.

Before that, however, I cannot leave the Iliad without giving you Alexander Pope's version of the trial passage on the shield of Achilles, if only as an excuse to digress for a moment upon the subject of that great 18^th century classical scholar, Richard Bentley, sometime Master of Trinity College Cambridge, who had something to say about Pope's Homer. Here is the passage from Pope:

"There, in the Forum swarm a num'rous Train;
The Subject of Debate, a Townsman slain:
One pleads the Fine discharg'd, which one deny'd,
And bade the Publick and the Laws decide:
The Witness is produc'd on either Hand;
For this, or that, the partial People stand:
Th' appointed Heralds still the noisy Bands,
And form a Ring, with Scepters in their Hands;
On Seats of Stone, within the sacred Place,
The rev'rend Elders nodded o'er the Case;
Alternate, each th' attesting Scepter took,
And rising solemn, each his Sentence spoke.
Two golden Talents lay amidst, in sight,
The Prize of him who best adjudged the Right."

Bentley's comment on Pope's Homer was, "It is a pretty poem, Mr Pope, but you must not call it Homer". Now, Bentley was a sound man in respects having nothing to do with classical scholarship: that great editor of Sophocles, R C Jebb, said of him, "He is believed to have liked port, but to have said of claret that 'it would be port if it could'". Bentley was also the subject of litigation in which the judge, Fortescue J, described a judicial hearing that took place well before the time of Homer; in the Garden of Eden in fact. In R v University of Cambridge [Endnote iv], otherwise known as Bentley's case, the University of Cambridge had stripped Bentley of his degrees because he had insulted the Vice-Chancellor's court; but the King's Bench issued a mandamus to reinstate him, partly on the ground that he should have had notice so that he could answer the accusation. So the case was an example of what we used to call the audi alteram partem rule. Fortescue J said this:

"I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam, before he was called upon to make his defence. 'Adam, says God, where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shoudst not eat?' And the same question was put to Eve also."

The inclusion of this reference in successive editions of Sir William Wade's great work on Administrative Law is not the least of many marks of its civilised excellence.

But it is time to turn to the next topic, a major theme: juries: juries, and democracy. Here we travel forward 300 years or so, to Aristophanes, that vulgar, brilliant, unsurpassed comedian of Athens in the last generation of what is often called its golden age. He wrote not less than forty plays. Of these the text of eleven have come down to us. Of the eleven the earliest is Acharnians, produced in 425 BC, and the latest is Ploutos or Wealth, produced in 388. We are concerned with the Wasps, which won second prize at the Festival of the Lenaia in 422 BC. The Lenaia was the winter festival at which dramatic productions were staged at Athens; the spring festival was the Dionysia. At both festivals the plays were put on in the theatre of Dionysus, whose remains you can see today, beneath the south east side of the Acropolis.

Now, one of the problems identified by Lord Justice Auld in his recent comprehensive report on the criminal justice system in England and Wales is (I summarise) the extent to which jury service is avoided by members of some sections of society whose contribution is sorely needed if juries are to be truly subject to random selection and to be representative of society at large. In the Introduction to his own excellent edition of the Wasps Professor Sommerstein of Nottingham University says this [Endnote v], of jury service in Athens in the late fifth century BC:

"A juror was paid three obols for each day on which he actually sat to try cases. Payment for jury service had presumably been instituted in order to enable poor men to serve so that juries would be reasonably representative of the whole citizen body; but since the payment made was not enough to support a family, and since by the 420s the courts sat very frequently (perhaps on more than half the days in the year...), there was a tendency for the juries to be manned largely by those who had no other occupation, especially the elderly poor: hence Aristophanes can sometimes treat 'old man' and 'juror' virtually as synonyms..."

But the picture of reluctance to do jury service is quite the opposite of what we find in the Wasps. A major but perverse pleasure of the play is in the triumph of age over youth, which in all conscience is refreshing enough these days. More to the point, Wasps witnesses the tricks and devices of Philokleon, the scheming and ingenious old man who, far from being reluctant to do his public duty, suffers a consuming passion for serving on juries. His twists and turns are to escape from the restraints and the disciplines of his dour and pompous son, Bdelykleon, who does his best to keep him at home. The names reflect political enthusiasms: support or opposition to the demagogue Cleon, the loudest voice in Athens since the death from the plague of the statesman Pericles in 429. As with all of the surviving Aristophanic oeuvre, the jokes and the themes in the Wasps are many and intertwined. What I choose to see in it for present purposes - and I have not the least conscience how great the anachronism may be - is the combination in the juror's role of freedom and irresponsibility. My friend Sir Louis Blom-Cooper, a previous Howard lecturer, has many times argued that the vice of the jury-system is that juries are not required to give reasons. If he re-reads the Wasps, he will no doubt be the first to say how much it is grist to his mill.

It is difficult to choose the right passage from Wasps to encapsulate Philokleon's exuberant malice. But I particularly like the following, in which Philokleon is trying to persuade his awful son Bdelykleon of the pleasures of jury service [Endnote vi]:

"At the outset I will prove to you that there exists no king whose might is greater than ours. Is there a pleasure, a blessing comparable with that of a juryman? Is there a being who lives more in the midst of delights, who is more feared, aged though he be? From the moment I leave my bed, men of power, the most illustrious in the city, await me at the bar of the tribunal; the moment I am seen from the greatest distance, they come forward to offer me a gentle hand, - that has pilfered the public funds; they entreat me, bowing right low and with a piteous voice, 'Oh, father,' they say, 'pity me, I adjure you by the profit you were able to make in the public service or in the army, when dealing with the victuals'. Why, the man who speaks thus would not know of my existence, had I not let him off on some former occasion."

And there is much more besides. What should we make of this comprehensive and stupefying cynicism? It has I suppose always been a mechanism of comedy to present farcical exaggerations of some feature of life that is true; you will immediately conjure a hundred examples. Many are furnished by political cartoonists, and I incline to think that Peter Brooks' Nature Notes in The Times are true descendants of Aristophanes' raucous and disrespectful comedies. But let me ask - was there a serious point about the deficiencies of juries being made somewhere beneath the breathless burlesque of the Wasps? I should first say that Philokleon is portrayed as having many vices beyond those apparent from the short passage I have cited. The doyen of scholars of the Old Comedy, Sir Kenneth Dover, says [Endnote vii], "What Philokleon likes about jury-service is not merely the opportunity to exercise arbitrary and irresponsible power but the opportunity to do harm"; and Dover illustrates this from the text. Moreover Philokleon's vices are by no means confined to what he does and does not do in the course of his jury service. Consider this passage, which means nothing unless you understand a peculiar feature of ancient Athenian society which I will explain in a moment. Again Philokleon is speaking:

"But I am forgetting the most pleasing thing of all. When I return home with my pay, everyone runs to greet me because of my money. First my daughter bathes me, anoints my feet, stoops to kiss me and, while she is calling me 'dearest father', fishes out my three obols with her tongue."[Endnote viii]

You will remember that three obols was the juror's daily pay. But what is all this about the daughter fishing out the money with her tongue? Now, the fact is that the ancient Greeks, certainly the Athenians, went about carrying their small change in their mouths. Odd though it seems, this is very well attested. There is another example in Wasps itself. Again, Philokleon is talking to Bdelykleon [Endnote ix]:

"... that damned jester, Lysistratus, played me an infamous trick the other day. He received a drachma for the two of us and went on the fish-market to get it changed and then brought me back three mullet scales. I took them for obols and crammed them into my mouth; but the smell choked me and I quickly spat them out. So I dragged him before the court."

So we can see that in the earlier passage Philokleon's daughter was sticking her tongue in his mouth. This is too much for the excellent Professor Sommerstein, whose commentary has this [Endnote x]:

"Aristophanes did no doubt intend the words to convey an indecent suggestion, but Philocleon means them metaphorically: the girl is using a flattering and coaxing tongue to induce her father to give her the money."

I do not think there is anything in the wonderfully lubricious Greek original to suggest so precious an approach. I would suppose that Aristophanes meant what he said; though it is worth noticing that Dover observes that this passage "is the only one in comedy which dares to hint at the enjoyment of incestuous contacts".

Philokleon, then, was malicious, corrupt, dishonest, and for good measure inclined towards incestuous lust [Endnote xi]. Yet by some peculiar alchemy he is a more attractive character than the son, Bdelykleon. However that may be, let me return to my question - what if any is the serious point behind it all? The expert scholars theorise variously, and I have given you no overall view of the progress of the play. But it seems to me that Wasps can be seen as saying something about the weaknesses, the fragility, of democracy; and whether that is viable or not as a matter of scholarship, I think it is illuminating to look at it that way. More accurately, perhaps, it says something about the weakness of democracy as an engine of justice. The jury of which Philokleon was such an enthusiastic member was not a jury of twelve, or anything of the kind. Cases before the Heliaia, which is the court most often referred to or best known in the literature, sometimes sat 1,000 jurors or more. A particular prosecution of a man called Speusippos in 415 BC is said to have been tried by 6,000 jurors. That may have been a special court, and in any event scholars have doubted the numbers. I think the only other fifth century case for which there is any record of jury numbers suggests 700 jurors.

The exact numbers are not important. But their magnitude sharply emphasises the fact that the jury court can be seen as a committee of the Assembly of the People. As you know every citizen of Athens (all men) was a member of the Assembly, which was the supreme law-making body, as we might say the sovereign legislature. To the extent that the court was a committee of the political legislature, it was, or must seem to have been, a function of the democracy.

The perception of the rule of law as a function of democratic government raises profound questions. Of these the most important is this: how can the doing of justice between man and man, or between man and State, depend on the popular will? In short, what has justice to do with democracy? Here is a concrete example: how can the use of the death penalty in any individual case justifiably depend on the discretionary decision of an elected politician?

In 406 BC, sixteen years after the production of the Wasps, the Peloponnesian War between Athens and Sparta still had some two years to run, though its outcome at that time to say the least remained uncertain. What was left of an Athenian fleet under the admiral Conon was trapped at Mytilene in the south of Lesbos, blockaded by the Spartans under Callicratidas. The situation was critical. Here is the response of Athens, described by Bury in his majestic History of Greece [Endnote xii]:

"The gold and silver dedications in the temples of the Acropolis were melted to defray the costs of a new armament; freedom was promised to slaves, citizenship to resident aliens, for their services in the emergency; and at the end of a month Athens and her allies sent a fleet of 150 triremes to relieve Mytilene. Callicratidas, who had now 170 ships, left 50 to maintain the blockade and sailed with the rest to meet the foe. A great battle was fought near the islets of the Arginusae, south of Lesbos, and the Athenians were victorious. Seventy Spartan ships were sunk or taken, and Callicratidas was slain. An untimely north wind hindered the victors from rescuing the crews of their wrecked ships, as well as from sailing to Mytilene to destroy the rest of the hostile fleet.

"The success had not been won without a certain sacrifice; twenty-five ships had been lost with their crews. It was believed that many of the men, floating about on the wreckage, might have been saved if the officers had taken proper measures."

This passage, whose relevance to my present theme I will shortly explain, has a little of the quality of Gibbon, though Gibbon is of course matchless. It is not without interest - to me at least - that the first edition of Bury's History was published in 1900 on the eve of Sir Arthur Evans' excavations at Knossos in Crete. Bury, moreover, held the Regius Chair of Modern History at Cambridge: a fact which, if one excludes the eccentric possibility that modern history might predate the death of Alexander the Great in 323 BC, powerfully betokens the catholicity of patient scholarship in Bury's time. Now, we are made to live in the prison of specialisms.

The relevance of the Arginusae story to my theme lies in its aftermath. The loss of so many Athenian sailors smelt of negligence. The commanders and the ship-captains - the trierarchs - blamed each other. The eight generals who had been present at the battle were at length called to account together, not before the ordinary courts, but before the whole Assembly of the people. After two sittings they were condemned to death. This was contrary to the law, or at least to a well-established usage [Endnote xiii], to the effect that such co-defendants were entitled to have their cases considered separately. It happened that at the time the philosopher Socrates was a member of the committee - the prytaneis - responsible for framing the motion for the Assembly's deliberation; and, in loyalty to the legal practice, he spoke against the trial of the generals all together. To no avail. The Assembly was baying for blood. Socrates' plea that the proper procedure be observed was set aside. Six of the eight went to their deaths; the other two, as Bury coyly puts it, "had prudently kept out of the way".

There is a melancholy postscript to this melancholy tale. Pericles, the great statesman of Athens, had as you will recall died in the plague epidemic in 429 BC. He left a son, also named Pericles. Not his legitimate son: the two sons of his marriage had predeceased him, having succumbed also to the plague. No, this was the son of Pericles and his mistress, the famous courtesan or hetaira Aspasia, who came not from Athens but from Miletus in what is now western Turkey. After the demise of his legitimate offspring, out of honour for their great leader the Assembly of the people passed a special decree - here it would be a private Act of Parliament - which legitimated this bastard son of Pericles and naturalised him as an Athenian citizen. This second Pericles prospered, and in the annual elections in 406 was made one of the ten generals appointed each year. But for his citizenship he could not, of course, have aspired to such office. But he was one of those indicted for Arginusae; one of the six who suffered the last punishment. His father's glory had brought him rights and privilege, which in turn were the occasion for his undoing and death.

So in the case of the Arginusae generals the popular will trampled over the law. The rule of law is often inconvenient to the florid expression of democracy, and we should never forget it. I wonder whether Aristophanes, observing these events in 406, was inclined somewhere in his head to say, I told you so.

In a small way, small only because thankfully it involved no sentences of death or their execution, our highest court did their own Arginusae. Like the decision in Athens, it was done in time of war, when this country faced the Nazi threat in 1941. The lawyers know the story well. I make no apology for telling it again. Those who are not lawyers ought to know it, if they do not already: Lord Atkin's dissenting speech in the House of Lords includes one of the greatest passages in the literature of the common law. Regulation 18B of the Defence (General) Regulations 1939 provided:

"If the Secretary of State has reasonable cause to believe any person to be of hostile origin or associations and that by reason thereof it is necessary to exercise control over him, he may make an order against that person directing that he be detained."

Mr Liversidge was detained by order of the Secretary of State. He brought an action for false imprisonment. The defendant Secretary of State pleaded the regulation. Mr Liversidge asked for an order that particulars be provided of the Secretary of State's allegation of reasonable cause. The lower courts held that the onus was on Mr Liversidge to show that the Secretary of State had no reasonable cause, and declined to order particulars. The Court of Appeal held that the words 'reasonable cause' imposed no objective condition precedent to the power to detain: "in short, ... the condition is subjective not objective". In the House of Lords [Endnote xiv], four of their Lordships agreed in the result with the Court of Appeal. Lord Atkin's was a lone dissenting voice. Patiently, and with great learning, he set out the case for what he regarded as obvious, though all their other Lordships would not have it: the expression "has reasonable cause" imported the existence of some objective facts capable of justifying a conclusion that the person in question was of hostile origin, and a mere belief on the minister's part in such a justification would not suffice. Then he said this:

"I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive-minded than the executive... In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachment on his liberty by the executive, alert to see that any coercive action is justified by law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I:

"I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister...

"I know of only one authority which might justify the suggested method of construction: 'When I use a word,' Humpty Dumpty said in a rather scornful tone, 'it means just what I choose it to mean, neither more nor less.' 'The question is,' said Alice, 'whether you can make so many words mean so many different things.' 'The question is,' said Humpty Dumpty, which is to be master - that's all.' (Through the Looking Glass, c.vi.) After all this long discussion the question is whether the words 'If a man has' can mean 'If a man thinks he has'. I am of opinion that they cannot, and that the case should be decided accordingly."

Thirty-eight years later, in the Rossminster case [Endnote xv], Lord Diplock and Lord Scarman acknowledged in terms that Lord Atkin had been right, and the majority wrong. But at the time Lord Atkin was badly treated for his outspokenness, being effectively sent to Coventry. He died a little over two years later, in 1944. With deference to many other wise and brilliant men, I think he was perhaps the greatest common lawyer of the last century. To compare him with Socrates is of course jejune and inept. But to compare Liversidge's case in 1942 AD with the Arginusae trial in 406 BC exposes a fragility of the rule of law, a fragility that beats the same weak drum as the centuries pass. The weakness is that disobedience to the law may seem to be justified by expediency, and the imperatives of democracy, the preservation of the State itself, may provide the greatest expediency.

All this, I acknowledge, is some distance from the unrespectable machinations of Philokleon in the Wasps. Still, by his own bad example he makes us think of the shortcomings of democracy as an instrument of justice, and from this all these other reflections have flowed in their turn. The demands of democracy, and of the security of the State in time of war, may perhaps be seen as a kind of force majeure which puts the rule of law in second place. By this spurious philosophy the will of the people is said to come first, even if sometimes it means that the law must be bypassed, sidelined. We have to be very suspicious of these siren calls. As Lord Atkin said, the laws may be changed, but they speak the same language in war as in peace. To accept that they may be set aside is to sign up to the rule of the loudest voice. The Athenian lawgiver Solon, who died about 130-140 years before the Wasps was produced, has another metaphor for what I apprehend is much the same thing. According to Diogenes Laertius he said [Endnote xvi]:

"Laws are like spider's webs: if some poor weak creature come up against them, it is caught; but a bigger one can break through and get away."

Whether it is an individual pushing his own interest, or the State pushing the people's interest, our instinct is to say that the rule of law must be preserved against intrusion. If the rule of law is to thrive, we have to accept as a distinct virtue obedience to the law for its own sake; so that you are not justified in disobeying the law merely because in some instance you disagree with it. And this is true enough; indeed it is a great principle; but perhaps it is not the whole truth. Are we sometimes justified in disobeying the law? This is my next theme, and shortly I will turn to see what Antigone, and Socrates, have to tell us.

But before I leave the subject of juries, it is apt to remember that Philokleon went about his more or less malign business late in the so-called golden age, when the paid jurors were likely seen as corrupt in comparison with their purer predecessors, who acted as jurors avowedly as a service to their city. Here we may call up a playwright far different from the rumbustuous Aristophanes: no less than Aeschylus, the father of tragedy, who fought against the Persians at Marathon, and it may be at Salamis as well. In particular we may consider the Eumenides, the last play in the great trilogy named the Oresteia. These plays are about the curse of the House of Atreus. For my purpose we need only recall that Orestes had killed his mother Clytemnestra, because she in turn had killed his father Agamemnon, leader of the Greeks in the Trojan War. For his impious offence Orestes was pursued by the Furies, for whom the last play in the trilogy is named: Eumenides, the Kindly Ones: the name is an instance of a Greek tradition, which is to give a nice name to something nasty. It is a kind of verbal evil eye, warding off whatever the thing might do to you. That is why they called the Black Sea the Euxine, which means 'friendly to strangers', because in their experience it wasn't. But I digress. Orestes was driven by the Furies, and at length with Apollo's aid arrived at Athens. There the patron goddess Athene agreed to judge the case against him, and to this the Furies submitted. It is a spectacular instance of recourse to law over darker, older forces. But the goddess would not judge the case alone. She insisted that there should be a jury. I give you a little known translation, the work of one R. Potter published in 1777. Here is what Athene said [Endnote xvii]:

"But since to me
Th' appeal is made, it shall be mine t'elect
Judges of blood, their faith confirm'd by oath,
And ratify the everlasting law.
Prepare you for the trial, call your proofs,
Arrange your evidence, bring all that tends
To aid your cause: I from the holiest men
That grace my city will select to judge
This cause with justice; men, whose sanctity
Abhors injustice, and reveres an oath."

The Oresteia, thus of course including the Eumenides, was Aeschylus' last production in Athens, put on in 458: mid-way between the battle of Salamis and the outbreak of the Peloponnesian War. There seems, does there not, a long distance between "the holiest men that grace my city, whose sanctity abhors injustice" and the lubricious Philokleon.

Now here is my next theme. When, if ever, are we justified in disobeying the law? Now, the tragedian Sophocles is credited with more than 120 plays, and at least 20 victories in the competitive festivals - 18 at the Dionysia. He first competed against Aeschylus in 468 BC. But only seven of his tragedies survive. There is no clear evidence to date the Antigone, with which for present purposes I am concerned, but some have put it at 442 or 441 BC: that is, five or six years after they started building the Parthenon. I need only give the barest bones of the awesome myth which is the play's setting. Oedipus, King of Thebes, discovered the dreadful truth that his wife Jocasta was his mother, blinded himself, and left the city. His sons Eteocles and Polyneices contested the throne in single combat. Each was wounded to death by the other. Jocasta's brother Creon, uncle to the dead princes, took the throne. For Eteocles he decreed a burial with honour. But Polyneices he ordered should lie unburied, and thus dishonoured. Their sister Antigone describes it thus [Endnote xviii]:

"He must be left to lie unwept, unburied,
For hungry birds of prey to swoop and feast
On his poor body. So he has decreed,
Our noble Creon, to all the citizens..."

In defiance of Creon's law, Antigone determines to give her brother Polyneices the peace and decency of burial. For this she was to pay with her life. Confronted by Creon, here is how she justified her disobedience [Endnote xix]:

"It was not Zeus who published this decree,
Nor have the Powers who rule among the dead
Imposed such laws as this upon mankind;
Nor could I think that a decree of yours -
A man - could override the laws of Heaven
Unwritten and unchanging. Not of today
Or yesterday is their authority;
They are eternal; no man saw their birth.
Was I to stand before the gods' tribunal
For disobeying them, because I feared
A man? I knew that I should have to die,
Even without your edict; if I die
Before my time, why then I count it gain;
To one who lives as I do, ringed about
With countless miseries, why, death is welcome.
For me to meet this doom is little grief;
But when my mother's son lay dead, had I
Neglected him and left him there unburied,
That would have caused me grief; this causes none.
And if you think it folly, then perhaps
I am accused of folly by the fool."

Most readers of the play are on Antigone's side (I am not so sure myself). At all events the value of this passage is that it is a potent instance of one kind of putative justification for civil disobedience: the duty to obey a higher law, or at least something which the person in question accepts as a higher law. In Antigone's case it is what she sees as the law of God, of Zeus; and Zeus' law is inconsistent with the law of the State, in this case Creon's decree. There are of course other possible reasons why you might disobey the law of the State. One is because you find obedience inconvenient to your personal, selfish interests, or even that you get a kick out of the act of disobedience: so you drive at 70 mph through a built-up area just for the fun of it. In that instance, of course, there is no colour of excuse or justification. But what of Antigone's plea? Does it differ from the simple case which arises where someone may disobey a law merely because he disagrees with it?

Before considering such a question, let me turn to Socrates. In 399 BC, at the age of 70, Socrates was put on trial on a charge of impiety. I give only the sparest outline of the tale, about which there are many controversies. The law of Athens gave no exhaustive definition of impiety, and so the accusers provided particulars, as we would call them. They were threefold: not recognising the city's gods; inventing new divine things; corrupting the young. There are all sorts of problems about the nature of the charge, but I am not concerned with those. (At the Old Bailey, it might have been said to be void for duplicity.) Socrates was tried by a jury of 500 or so (there are difficulties on the evidence about the precise numbers). This was 23 years after the Wasps; so Philokleon, I suppose, must have gone to his probably unlamented grave. Still, others of his kind were no doubt on the jury. Socrates was convicted. The penalty for impiety was not fixed. It was, as we would say, in the discretion of the court. However at a second hearing Socrates effectively declined to propose any real alternative to the death penalty which the prosecution demanded. And so he was condemned to death.

His execution was delayed by a month out of respect for a religious festival during which executions were forbidden. During this time, Socrates was visited in jail by his friend Crito, who tried to persuade him to escape: which was a real enough possibility. Socrates refused. His reasons, in Plato's dialogue the Crito, are given in a long exposition about the force of a solemn contract between himself and the State. I cannot give the whole of it here. Socrates conjures the State itself as his interlocutor. Hence we find this (Socrates is addressing Crito)[Endnote xx]:

"Suppose the laws and the state... came and confronting us as we were about to run away from here were to say: 'Tell me, Socrates, what are you thinking about doing? Are you contemplating by this act [sc. escape] that you're attempting anything other than the destruction of us, the laws, and the whole city insofar as you can? Or, do you think that the city can still exist and not be destroyed when the decisions handed down in the courts have no force but are left without authority by private citizens and are destroyed?' What shall we say, Crito, to this and other things of the same sort?... Or shall we say to them, 'The city was unjust to us and did not judge my case correctly'. Shall we say this or what?"

And Crito drearily replies, "That's what we'll say, by god, Socrates". But of course Socrates disagrees. He accepts the argument that he himself puts in the mouth of the State, that it would be a betrayal of the State which had nurtured him, and so an unjust act, were he to escape.

This is a very upbeat justification of the virtue of obedience to the law, and the vindication of the rule of law. In earlier passages in the Crito [Endnote xxi] Socrates is at pains to emphasise the duty never to do what is unjust. In refusing Crito's invitation to escape, did he mean that it would always be unjust to defy the laws of the State? I doubt it. In the dialogue's longueurs there is no suggestion of any acceptance on Socrates' part of an argument that there was anything unjust in the sentence of death passed upon him. The arguments put forward by Crito for escape were really to save Socrates' own skin. In Plato's dialogue the Crito, so far as I can see, Socrates does not really deal with the dilemma created by the unjust law, which it might be the citizen's duty to disobey.

And there is material to show that Socrates would disobey a law or a command of the State if he were convinced that it was unjust. Passages in Plato's Apology show that he would defy any order which forbade him from continuing on the path of philosophical enquiry [Endnote xxii].

Where, then, does all this leave us? Antigone witnesses a loyalty to a law whose authority for her is greater than that of the law of the State. Socrates witnesses, at least, a high duty to obey the laws of the State, but still, for him also, there is a sticking-point. And these philosophical considerations are given to us in texts which take their place amongst the greatest of western literature. This lecture is not the occasion for a disquisition purporting to offer any definitive answers to the question, when is it justified to disobey the law; but I cannot look the Greeks' exuberant intellectual curiosity in the face without suggesting, at least, one or two preliminary positions.

First: you are much less likely to be justified in disobeying the law in a democratic State: because the popular will may procure a change in the law, and there are mechanisms for doing it, certainly if free speech is respected and there is an independent press. The essence of this must have been a particularly vivid truth in ancient Athens: notions of the press or the media are no doubt very anachronistic, but in those days the democracy was literally the rule of the enfranchised citizens, who constituted the legislature. The citizens had a loud voice. I think Socrates might have signed up to the view that there is a trade-off between the duty to obey the law and the chances you have of getting it changed.

Second: there is an important distinction between an act of disobedience to the law which is justified, and one which is merely excused. Disobedience is justified if the law is, at the bar of civilised opinion, wholly beyond the pale: as for example would be a law which allowed - or worse required - Jews, or Muslims, or Christians, to be assaulted and beaten with impunity just because they were Jews or Muslims or Christians. Socrates would probably have signed up to this, on the basis that the effects of such a law were necessarily unjust. By contrast disobedience is merely excused if, though the law itself is just, there was on particular facts a pressing need to disobey it: as where a driver who is over the statutory alcohol limit drives his car to get his badly injured neighbour to hospital.

The third point about this issue of disobedience to the law is this. The distinction between justification and excuse does not answer the problem in Antigone's case. She disobeys Creon's law (and goes to her death for it) because she feels herself subject to another, higher law, the law of Zeus. How does this differ from the commonplace instance, where with no theistic interpolations the person in question disobeys a law merely because he disagrees with it? Disobedience in the latter case cannot be justified, because it proceeds only from a difference of opinion, and accordingly gives no weight to compliance with the law as a distinct virtue. But Antigone's case is different. She does not merely disagree with Creon's decree. Her conscience finds it repugnant. She cannot live with obeying it. In such an instance her disobedience, I think, is not necessarily justified - the claim that compliance would be contrary to Zeus' law by no means of itself produces the result that Creon's decree, at the bar of civilised opinion, is wholly beyond the pale (though perhaps to many Greeks it was). Nor is Antigone's disobedience excused: it is not a case where the facts drive the moral result, as where the drunk driver takes his badly injured neighbour to hospital. A conscientious objection to the law, whether entertained on religious or other grounds, going beyond mere disagreement with the law's terms but not amounting to a justification or excuse for disobedience, is in a different category. It is entitled to be respected. Its perpetrator is not entitled to be relieved of the legal consequences of disobedience, though if his disobedience is truly born out of conscience only, that may go in mitigation of sentence.

So we have these three ideas as responses to disobedience to the law: justification, excuse, and respect. In the first case, justification, you are simply entitled to disobey. In the second, excuse, you are not so entitled, but ought not to be punished (or punished very lightly): it might be a case for an absolute discharge. In the last case, respect, again you are not absolved from obedience; but because your position is a conscientious one, your punishment should be mitigated.

Here, then, are our themes, suggested by the Greeks themselves: justice and democracy, law and the duty to obey it. They are, plainly, themes which press upon us today with no less force than in 5^th century Athens. Of course, much is strange about the societies of the ancient Greeks. You do not, so far as I know, find people walking down Oxford Street with their small change in their mouth. There is some material to suggest that the evidence of a slave was not admissible in Athenian courts unless he had been tortured. And, though Greece is undoubtedly the birthplace of democracy, as everyone knows the citizenship in Athens was strictly circumscribed: only adult males who fulfilled certain qualifications. Yet some of the things we have heard Greek voices say about the law are thoroughly modern. I may put the seal on it with a passage from the last of the three great Athenian tragedians, Euripides. The Suppliants, produced in 421 BC (the year after the Wasps), recalls Sophocles' Antigone, for it too is concerned with the law and the ethics of leaving the dead unburied outside Thebes. It is also concerned, very much concerned, with democracy. In today's western world the twin civic virtues of 'democracy and the rule of law' have passed from being matter for argument to qualify as eternal verities. In ancient Greece democracy as a form of government was very much debated, as we can see, most notably perhaps, from Aristotle's Politics. You would not, perhaps, expect to find in the literature a limpid perception of today's truth, a truth despite Arginusae and Liversidge's case and all I have said about the siren calls of State expediency, that democracy and the rule of law in the end go hand in hand. In this passage from the Suppliants the Theban herald speaks first, justifying dictatorship in exactly the way Mussolini must have justified it, or, I am sorry to say, the military tyranny which ruled Greece itself from 1967 until 1974 [Endnote xxiii]:

"I speak for a state where one man rules,
Not a rabble. We don't have loud-mouths there,
Filling our ears and twisting us
This way, that way,
Whichever way their own profit lies -
One day riding high, next scrabbling,
Slandering, blaming the innocent
And skipping off scot-free.
The people! How can a people rule?
Has a people a single voice, a single brain?
Has a people experience? Farmworkers,
Good at what they do, no doubt,
But who expects them to drop their hoes
And bend their intelligence to affairs of state?
They've nothing; they're tongues on legs;
They talk themselves up
From the furrow to the stars.
They sicken their betters."

This is how Theseus of Athens answers him [Endnote xxiv]:

"If a state gives one man absolute power,
Puts itself in one man's hands, it's doomed.
The rule of law dies first. He makes up laws
To please himself. In an equal state,
Where all are equal, all are free,
The law's written down, it's the same for all,
Rights guaranteed for rich and poor alike.
Weak stands up to strong, its voice is equal,
The contest's not in strength, but justice.
When we gather in Assembly, our heralds ask
'In Athens' name, for the city's sake,
Who wants to speak?' If you've something to say,
You say it, it's an honour; if you've not, you don't.
Democracy, we call it."

This dazzling culture, whose riches should be everyone's possession, has much, much more to offer: and much more about the law. I have said nothing of Plato's great works, the Republic and the Laws; nothing of Aristotle; nothing of the great fourth century orators, Demosthenes and Isocrates. They need not lectures, but encyclopaedias, and I have not the time nor, alas, the scholarship. At the end I would recall the great Greek struggle against the Persians in 480 BC, when Greece was saved from the invader by the heroism of its allied forces. But first, there was a terrible, but glorious defeat, at the battle of Thermopylae. The Spartan orders were for one of the two kings, Leonidas, to defend the pass of Thermopylae against the massed Persian advance with 300 of their best men, Spartan citizens, the Spartiates, and allied troops. There was bitter fighting and much spilt blood as wave after wave of the Persians were thrown back. At length the Greeks were betrayed by one of their own, Ephialtes, who showed the Persians a mountain path which would allow them to pass by the Greeks and attack them in the rear. Leonidas realised he was doomed. The other troops made their way to safety. The 300 remained, loyal to their city's orders. All but two were slain. There is no more poignant testimonial, not only to the virtues of courage and self-sacrifice, but obedience to the law, than the words of the roadside memorial:

"Passer-by, go tell the Spartans
That we lie here, obedient to their commands."

Endnotes

Iliad 18, 130-137, Penguin Classics, tr. E.V. Rieu.

Ibid. 497-508.

Thames & Hudson, 1978.

(1723) 1 Str. 557.

Aris & Phillips Ltd, 1983: pp.xvi-xvii.

548-558. I have taken this translation from the admirable Perseus website , which however does not appear to identify the translator.

Aristophanic Comedy (University of California Press, 1972), ch. IX p. 126.

605-609. I have slightly adapted the translation on Perseus.

786-793.

Op. cit. p. 194.

Given also to an interest in young boys: at line 577 he speaks of "the chance to look at boys' private parts when they're being examined for registration".

Macmillan & Co, 3^rd edition 1963, pp. 500-501.

Formulated in what is called the Psephism of Cannonus: as we are told by Bury at footnote 1, p. 501.

Liversidge v Anderson [1942] AC 206.

R v Inland Revenue Commissioners ex p. Rossminster Ltd [1980] AC 952.

Diogenes Laertius, Lives of the Eminent Philosophers, I. 58.

Eumenides, 482-489. Potter's Aeschylus, published in 1777 by J Crouse, of the Market-Place, Norwich.

Antigone, 27-30. The translation is by H D F Kitto (Oxford University Press, 1962).

Antigone, 440-460 (Kitto's translation).

Crito, 50a-c. The translation is a new one, to be found in the wholly excellent The Trial and Execution of Socrates (Oxford University Press, 2002) by Brickhouse and Smith.

49a4-b8.

Plato, Apology, 29c5-d5, 37e3-38a6. The possibility of an inconsistency between Socrates' position in the Crito and his position in the Apology is the subject of an excellent discussion in chapter 8 of Brickhouse and Smith, op. cit.

Suppliants, 410-425, tr. Kenneth McLeish, Euripides Plays: Six, Methuen Drama, 1997.

428-441, ibid.

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United Kingdom Judiciary Speeches

Lord Justice Laws

"From Homer to Socrates - The Rule of Law in Greek Literature"

The Howard Memorial Lecture 2002 given at the Law Faculty, Oxford

16 May 2002

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