Socrates' Last Error
ABSTRACT: In the dialogue, Crito, Socrates justified his decision to accept his death penalty. His decision was praised as principled and just. However, such a view was one of the greatest myths in the history of philosophy. Contrary to the accepted ideas, I wish to show that Socrates argument was erroneous, the crucial error being his failure to distinguish between substantial and procedural justice. In fact, the whole of the Crito refers to some deeper problems of the philosophy of law and morality.
The dialogue "Crito" recounts Socrates' last days, immediately before his execution. As the text reveals, his friend Crito proposes to Socrates that he escape from prison. In a dialogue with Crito, Socrates considers the proposal, trying to establish whether an act like that would be just and morally justified. Eventually, he came to argue that by rejecting his sentence and by trying to escape from prison he would commit unjust and morally unjustified acts. Therefore, he decided to accept his death penalty and execution. Because of his decision, he became one of the cult figures in the history of philosophy, a man of intact moral integrity who had made his final decision according to the very same principles that guided his entire life. He was praised as a grand rationalist who had acted rationally and justlya view which, I believe, represents one of the greatest myths in the history of philosophy.
Contrary to this widely accepted myth, I will try to demonstrate that Socrates' argument was erroneous, which made his decision less rational. In fact, had he decided to escape, his behavior would not have represented an unjust act. Although his argumentation and dialogue with Crito seem more like a moral sermon, his ideas are based on some deeper philosophical problems. In fact, Socrates' argument, developed in "Crito," belongs to the domain of the philosophy of law and morality. The argument can be summarized in the following way:
1. Lawbreaking is unjust, while observance of laws is just, because
The conclusion that Socrates drew from the premises is sound only if the premises themselves are true, and that is why their soundness must be examined first.
ad 1. The first premise cannot be questioned, because its truth seems incontestable. However, this is true only insofar as the first premise is related to the second one. It is assumed that the second premise ("Laws are just") is correct. Indeed, respect of unjust laws must be morally doubtful, which means that the claim for their observance must be based on some other, additional reasons, of which one of the most frequently quoted was that "even the worst legal system is still better than no legal system at all." A statement like that seems to be based on the fear of anarchy which might be produced by disrespect of laws and legally based decisions. This, however, is also relevant for unjust decisions, which contributes greatly to an exaggerated fear of anarchy. Indeed, if unjust decisions were relatively rare, then the disrespect of them would not lead to anarchy but rather to excesses. If unjust decisions became a regular practice within a given state and its legal system, then a question could be raised about the justification of the existence of such a state and such a legal system. Nevertheless, let us proceed to the second premise, because the first one can be easily accepted in conjunction with the second one.
ad 2. Are all laws just? This could hardly be true, especially if we consider legal systems which discriminate against certain groups or favor some groups over the rest of society. From today's point of view, one could criticize the laws of Athens for their discrimination against slaves, but modern history offers some good examples as well: consider the Nazi laws of the Third Reich or the legal solutions applied in the South African Republic during apartheid.
The question about justice entails yet another, deeper question: are all laws, in principle, liable to moral criticism? If yes, then Socrates had to offer some moral reasons for their rejection. In the course of centuries, the dilemma gave rise to two, frequently opposed, schools of legal thought: the legal positivist and the school of natural law. Although the former has denied and the latter affirmed the possibility of moral criticism of laws, the dividing line between the two was never clear-cut but varied from author to author. This means that the legal positivists have sometimes accepted the possibility of moral criticism of laws.
The legal positivists maintain that "laws can have any content." This means that even morally unacceptable stipulations can be incorporated in laws, and that even these laws must be respected. The relationship between morality and law can only be contingent, since law is a sui generis substance. Thus, Kelsen explicitly states that "legal norms can have any content whatsoever."(1) Other positivists, like Austin & Gray, think in a similar fashion: " The existence of law is one thing; its merit or demerit another." Or: " The law of a State is not an ideal but somethning which actually exists ... it is not that which ought to be, but that which is."(2) What matters for the legal positivist is the validity of law, i.e., the valid procedure of its adoption. The moral justification of a law is quite another pair of gloves.
However, there are always the situations which pose the dilemma of whether one should obey "immoral" laws or punish individuals who had committed acts that are not punishable in some other legal system. The latter problem occurred frequently in post-Nazi Germany when courts were faced with this practical problem.
On the other hand, the school of natural law insisted on a "metaphysical" concept of law, which includes the notion of justice and thus open a possibility for moral criticism. Justice is not an "irrational" idea, as Kelsen used to think. There are some inalienable, natural rights that no positive legal system could abolish without endangering its own legitimacy.
Thomas Aquinas, the founder of the school of natural law, thought that there was a difference between man-made, (i.e., positive and imperfect) laws and the unchangeable and unamendable natural law. Consequently, there could not be any automatic moral obligation in respect to positive, man-made laws. In fact, only just laws could command our respect:
Therefore, an order has the force of law only when it is just. And in the realm of human acts something can be considered as just when it is governed by the rule of reason. But the first rule of reason is the law of nature... Consequently, every human law has just so much of the nature of law as it is derived from the law of nature. But if in any point it departs from the law of nature it is no longer a law but a perversion of law"(3)
This statement implies that a law must be based on correct reasoning and natural law. Otherwise, we are not dealing with a law but with its perversion. The school of natural law tended to deny the status of laws to unjust laws, but since this is not of the utmost importance, further discussion about the notion of law will be omitted from this paper. What is important, however, is the possibility of fallibility of positive law and its susceptibility to moral criticism. It is obvious that if we adhere to such a view, we can contest the second premise on principled grounds. If the laws of Athens were not morally correct and if one could demonstrate their moral deficiency, then Socrates would have the moral right to reject the verdict, so that his escape would not constitute an unjust act. But, whatever the principled answer we may find to the problem of moral fallibility of laws, it would be largely irrelevant in Socrates case, for he was in a very precise situation where he had to decide whether the laws of Athens of his time were just. Since he gave an affirmative answer to this dilemma, we will proceed to consideration of the third point.
ad 3. How the laws of Athens can be absolutely just, if laws in general can be unjust and, as such, susceptible to moral criticism? Obviously, we are faced with a specific kind of justice, a specific clause which renders the laws of Athens protected from moral criticism. At the end of each year, every free citizen of Athens could propose changes of a particular law that he deemed unjust. There was even a special body charged with deliberation of the proposals in view of their adoption or rejection. If a proposal was not accepted, there was a special clause stipulating the possibility for the citizen to leave Athens freely with no consequences. If the citizen remained, it was assumed that he agreed with the existing laws. Thus, the laws of Athens were absolutely just for all Athenians, on the basis of their consensus or, to put it in other words, on the basis of a contract reached between "citizens and the laws."
In Socrates imagined dialoque with the laws, they tell him:
"Yet we proclaim that if any man of the Athenians is dissatisfied with us, he may take his goods and go away whithersoever he pleases: we give that permission to every man who chooses to avail himself of it, so soon as he has reached mans estate, and see us, the laws, and the administration of our city"(4)
On the contrary, all citizens of Athens who did not plead for legal changes and who remained in Athens obviously agreed with the laws, which meant that they could not submit them to moral criticism. The laws are saying to Socrates,
that every man of you who remains here, seeing how we administer justice, and how we govern the city in other matters, has agreed, by the very fact of remaining here, to do whatsoever we bid him.(5)
Socrates himself did not advocate changes in laws, nor did he leave Athens, so that he had to feel obliged to respect the laws, which he, eo ipso, had to consider as just. For, the laws would tell him:
"Socrates, we have very strong evidence that you were satisfied with us and with the city. You would not have been content to stay at home in it more than other Athenians, unless you had been satisfied with it more than they."(6)
Thus, Socrates had, like all Athenians, signed an implicit contract with the laws, specifying that he would respect them and do whatever they demanded of him. In that way, every effort to prove the illegitimacy of Athenian laws is invalidated, since they had been made on a consensual, i.e., contractual basis. Socrates understood this and therefore could not contest the laws because he had been indicted. In fact, he understood perfectly this part of the Athenian legal system. The laws of Athens were absolutely just, for him as well as for all those Athenians who had not left the city. Therefore, since this premise cannot be overruled, we will turn to the next one.
ad. 4 If the laws are just, are judicial decisions made on the basis of these laws just as well? Socrates believed that justice was indivisible and that it is naturally transmitted from the law into judicial decisions. If the laws are just then judicial decisions made on the basis of these laws must be just as well. This could be understood through analogy with deductive reasoning. The truth is transmitted from the premises into the conclusion. Thus, justice too should represent a semantic characteristic, or at least a partial semantic characteristic. If the legal procedure represented a kind of mechanical procedure, then it could be admitted that justice is automatically transmitted from the law into judicial decisions, but, unfortunately, this is not the case. Laws are somewhat vague and, as such, demand interpretation. In all probability, Socrates erred in not making a distinction between justice of laws and justice of judicial proceedings. The justice which refers to laws can be named substantial justice, while the justice of judicial proceedings can be labeled as procedural justice.(7) Even if the effective laws are absolutely just, the court procedure can produce injustice if the laws are applied incorrectly.
The general idea of procedural justice and Harts interpretation of it draw upon the important observation that injustice can be done not only by following the law but also by applying it unfairly.(8)
In Socrates case, the law had been incorrectly applied. This is what Socrates tried to prove in his trial. The accusation went as follows: "Socrates is an evil-doer who corrupts the youth, and who does not believe in the gods whom the city believes in, but in other new divinities."(9) During the trial, he denied all the accusations. He denied the would-be corruption of the youth and disclaimed his alleged disbelief in the gods of the Athenian state. The law had not been correctly applied and the evidence for the accusation was not produced. Thus, by judging him guilty, the court obviously acted unjustly. Was Socrates then obliged to respect such a verdict? Does one who disrespects an unjust verdict commit an unjust act? Obviously, we cannot evoke here the justice of laws, because we do not contest substantial justice but procedural justice. Socrates himself felt a certain weakness of his argument on this point and wanted to make it stronger somehow. The laws were telling him:
It is obvious that premise 4 cannot hold, and by the same token the conclusion becomes invalid. It is clear that verdicts reached on the basis of a just law can sometimes be unjust, and it is clear that there is no automatic transfer of justice. In fact, Socrates did not make a clear distinction between substantial and procedural justice. In order to make his conclusion valid and thus justify his decision not to escape, Socrates tried to strengthen his argument by premise 5.
ad.5 Since it is impossible to prove that judicial decisions are just, only because they are based on just laws, there remains a possibility to affirm that all judicial decisions, no matter what they are, must be carried out. That is why Socrates says the following:
Much might be said, especially by an orator, in defense of the law which makes judicial decisions supreme. Shall I reply, "But the state has injured me: it has decided my cause wrongly". Shall we say that? (11)
Socrates accepted that verdicts must be carried out, regardless of the fact that they were not reached correctly. He thinks that by accepting the law he had obliged himself to respect verdicts even if they were unjust. Because, the laws would tell him:
Now we can state the crucial question: To whom does the legal obligation to carry out verdicts refers? I do not think that it refers to all citizens of Athens, but only to judges, court executives, prison wardens and other representatives of the legal and executive power. Since the majority of citizens cannot or do not have to participate in law enforcement, the obligation to carry out verdicts cannot refer to them. In modern legal systems this point is quite clear, but the legal system of Socrates time was not that sophisticated and specialized. Since Socrates, as an ordinary citizen, had not obliged himself to carry out verdicts, he was not obliged to respect unjust verdicts. He had only to respect just verdicts, because otherwise he would have broken the law to which he had obliged himself.
ad. 6. There is the last premise which remains to be examined. It is trivially correct: it says that inobservance of the laws would lead to the destruction of the legal system. But in Socrates case, it is not a question of disrespect of all verdicts but only of the unjust ones. That was the last occasion for Socrates to ask himself what are the criteria of justice and who can postulate such criteria. He could have referred himself to the criterion which said: "let no one be judge in his own affairs". Of course, there cannot be a definite answer in this matter. Perhaps only God almighty could provide it.
We have already stated at the beginning of this paper that it is pure exaggeration to say that disrespect of unjust verdicts would lead to anarchy and destruction of laws. It happens every day that individuals try to avoid sentences pronounced on them, and yet legal systems remain in their place and states do not end up in anarchy. In fact, we are dealing here more with an empirical expectation than with a logical principle, and we might as well say that the acceptance of unjust verdicts leads to perversion of the legal system and state. Or as St. Augustine has put it: " What are states without justice but robber-bands enlarged?".(13)
If our analysis is correct, Socrates argument was wrong, and the same could be said for the conclusion that he wanted to prove. Consequently, his decision not to escape from prison cannot be regarded as rational, and it can even be less considered as just. By refraining from action, Socrates became an accomplice in injustice. Therefore, it is quite strange that the myth about his decision as just and morally correct could hold up for so long. The only thing that cannot be denied to Socrates is his heroism. Errors are often costly and, in Socrates case, the price was the absolute one. Some errors could be rectified, but Socrates could not correct his last error.
NOTES(1) Kelsen, A General Theory of Law and State, p. 113. (2) Hart, The Concept of Law, p. 203.
(3) Thomas Aquinas, Summa Theologiae, I-II, question 95.
(4) Plato, Crito, in: The Works of Plato, The Nottingham Society, New York, vol. III, p. 125-6. (the year of publication unknown).
(5) Ibid. p. 126.(6) Ibid. p. 126.
(7) H. L., Hart, The Concept of Law, ch. VIII, and D., Lyons, Ethics and the rule of law, Cambridge University Press, 1989, p. 78 ff,(8) D., Lyons, Ethics and the Rule of Law, Cambridge University Press, 1989, p. 81. (9) Plato, The Apology, in: The Works of Plato, The Nottingham Society, New York, vol. III, p. 91. (the year of publication unknown).
(10) Plato, Crito, in: The Works of Plato, The Nottingham Society, New York, vol. III, p. 129. (the year of publication unknown).(11) Ibid., 124.
(12) Ibid., 124.
(13) St. Augustine, Confessions, IV.