My excessive procrastination in the two days prior¹ stems from a question posed to me by a friend, which can be summarised, in the original questioners’ words, as follows: “If the laws are not based in what is just, do you have any obligation to follow them?” This is one of the fundamental questions of political philosophy: who must you obey, and why? I do not claim to have the answer to this, but what follows is an elementary account drawn from Socrates’ speech on the laws in Crito² using Ann Congleton’s emphasis on the two kinds of lawlessness, and my own observations on legitimacy, authority, and the power of the law.³

Congleton’s contention is that “the problem of Crito is not so much a problem of Socrates but of Crito, not a problem of the relation of law to something higher but of the relation of law to something lower.”⁴  This is the first step, Congleton argues, in reconciling what may seem to be opposing positions that Socrates takes in the Apology and then in his explanation to Crito; in the former he addresses the jury somewhat mockingly, not trying to save his own skin; in the Crito, he expresses a love for the laws of Athens and its laws. Are these two views incompatible — or do they tell us something about the role of the philosopher in the polis?

Congleton brings forth what I ignored when reading the Crito — that Socrates speaks to Crito, an individual who is not merely anyone, but has a distinct personality and history attached to him. The presence of a recognisable character, whether it is Aspasia or Alcibiades or Gorgias or Polemarchus, is essential to the understanding of the Platonic dialogues, especially in the earlier ones, where there is a more conscious recognition of who Socrates is conversing with. While the conversations often take place in the marketplace, the individuals in the dialogues are often of the first rank in Athenian civic life, or from a selection of figures which are also of interest to the historian (who wouldn’t want to know whether the Alcibiades of the Symposium was also the treacherous Alcibiades of Thucydides’ History?).

In this case, however, Socrates is conversing with Crito, who, as Congleton recounts, has bribed the prison guards to gain access to Socrates, and then advocates for a variety of solutions, all of which involve some degree of bribery, licentiousness, or in general disorder. Crito, having learnt some things from Socrates, has yet some ways to go, and must be “shaken yet again from his tendency to the favouritism of helping friends and harming enemies, and introduced to the notion of law.”⁵

The arguments Socrates offers are not very coherent — it is not his best performance, one may say — but surely Socrates knows that he leaves questions of the first rate unresolved, particularly the jump between the discussion on the opinion of the specialist (47a–48a), where it has been agreed by Crito and Socrates that “we should not then think so much of what the majority will say about us, but what he will say who understands justice and injustice, the one, that is, and the truth itself” (48a). How, then, can Socrates make the jump to ascertaining where her “the good life, the beautiful life, and the just life are the same” (48b) — and then, right after, to “examine next whether it is just for me [Socrates] to try to get out of here when the Athenians have not acquitted me” (48b–c)? The marketplace Socrates would have first endeavoured to question whether or not the Athenian courts were just, and consequently whether the trial was just, and then the punishment itself. Here, Socrates does neither of them, because it seems he has made up his mind. He knows that he is to die, and would die honourably than to do wrong willingly; he sees a bigger moral hazard in conducing others to do what is wrong even if the punishment imparted to him is unjust. Socrates leaves that line of inquiry open — in the speech the Athenian Laws make, it is admitted that if Socrates tried to leave, he would be doing so “after being wronged not by us, the laws, but by men” (54b). Socrates, tacitly admitting that the men of the jury were wrong in their application of the law, accepts the validity and justness of the laws of Athens in themselves, perhaps in their ideal form.⁶ His conviction was driven more by animus and spite, and less by reason: however dangerous Socrates was, it seems rather unlikely that he posed material threat to Athens.

But, I digress, as always. The intention here was to explain why Socrates mobilised the ‘lower lawlessness’ to explain why he showed agency in following the laws of Athens, even if they were applied poorly. In my post on Burke’s speech on Fox’s East India Bill, I included the following quote by the scholar A. P. d’Entrèves: “How did it come about … that political theory borrowed from the lawyers the notion of contract, ‘that greediest of legal categories’, and made it the basis of the State?”⁷ Even though d’Entrèves was not discussing Socrates’ usage of the ‘contract’ between the laws and the individual citizen, it would be helpful to understand them to be the same, in this case (cf. 50c). Perhaps this is why Socrates resorts to the ‘the greediest of legal categories’ and made it the basis of the state⁸, if only to ensure that Glaucon, who admittedly has a limited ability to follow Socrates on his journeys on the via negativa, is able to understand what is happening. Congleton emphasises Crito’s response to Socrates’ question (49e–50a):

Socrates: “… if we leave here without the city’s permission, are we harming people whom we should least do harm to? And are we sticking to a just agreement, or not?”
Crito: “I cannot answer your question, Socrates. I do not know.”

Crito expresses his inability to comprehend Socrates’ line of reasoning. But it seems as though Crito is unable to grasp the fundamental concept of Socratic justice, preferring to, if I were to paraphrase another contemporary of Socrates’, help one’s friends and hurt one’s enemies, a personal justice contrary to the justice of the polis or to any form of universal justice. Crito, therefore, must be taught in the crude language of business what it is to make an agreement.⁹ Crito is taught that the laws of Athens are right — though the demos is tyrannical and despotic — and that he must obey the laws because of the agreement he made by choosing to stay in Athens. It assumes that the laws are just, that the city is more or less just, and that the agreement made between them is just.

Is this a particularly viable defence of political authority and legitimacy? I find it wholly inadequate, lacking in certain essential areas. But that is not the point of this. This was a good enough explanation when I started reading Socrates. It is meant to, as Congleton puts it, an explanation of the different forms of lawlessness to the more astute reader: “… while the rule of law is vastly inferior to the higher lawlessness [‘the rule of reason’], it is still vastly superior to the lower lawlessness. And, as we have seen, it is the lower lawlessness which is the alternative to law for Crito, as it surely was for Athens in general in 399 BC.”¹⁰ The goal of the dialogue, then, is to make Crito’s understanding progress from that of using money to do what he feels is right, to a love for the law, “in gradual stages”¹¹ It is only then that the explanations Socrates give to Crito are made intelligible: that the love of the law must be instilled into those who are licentious or do not understand moral obligation, or are unable to grasp the power and utility of reason.

However, I have not yet managed to answer the question posed to me: “If the laws are not based in what is just, do you have any obligation to follow them?” Perhaps a more sympathetic reading of the speech Socrates offers as coming from the Laws of Athens (50b–54d) may provide a more simple answer: love. Socrates does not want to leave Athens, but he is forced to, during the Peloponnesian War, when he fights and acquits himself with remarkable bravery. But he is unable to imagine life outside Athens — even the Republic, whilst strictly speaking is set outside of the Athenian version of the Centro Storico, is still within the bounds of Athens. He cannot bear to imagine life outside of it; he cannot imagine philosophy outside of it, even. He tells Polus:

“You’d certainly be in a terrible way, my good friend, if upon coming to Athens, where there’s more freedom of speech than anywhere else in Greece, you alone should miss out on it here. But look at it the other way. If you spoke at length and were unwilling to answer what you’re asked, wouldn’t I be in a terrible way if I’m not to have the freedom to stop listening to you and leave? But if you care at all about the discussion we’ve had and want to straighten it up, please retract whatever you think best, as I was saying just now. Take your turn in asking and being asked questions the way Gorgias and I did, and subject me and yourself to refutation. You say, I take it, that you know the same craft that Gorgias knows? Or don’t you?”(Gorgias 461e–462a).

Socrates is so inexorably bound to Athens that life without his citta eternita would also mean a life without philosophy. He was intelligent enough to recognise that, and while he hints and alludes at this in the Crito through the speech of the laws, he does not venture to directly reveal that only the democracy of Athens could provide the necessary condition for his philosophy: “where there’s more freedom of speech than anywhere else in Greece” (Gorgias 461e). What Polus and Gorgias would be missing out on was Socrates’ philosophy, as the following phrase indicates. Perhaps that is the simplest explanation: that Socrates was human, that he loved, and the two things he had torrid affairs with, one more harmful than the other, was Athens and philosophy.