Socrates and Legal Obligation This page intentionally left blank Socrates and Legal Obligation R. E. Allen Department of Philosophy and Classics Northwestern University University of Minnesota Press • Minneapolis Copyright © 1980 by the University of Minnesota. All rights reserved. Published by the University of Minnesota Press, 2037 University Avenue Southeast, Minneapolis MN 55414 Printed in the United States of America. Library of Congress Cataloging in Publication Data Allen, Reginald E. 1931- Socrates and legal obligation. Includes the author's translations of Plato's Apology and Crito. Bibliography: p. Includes index. I.Plato. Apologia. 2. Plato. Crito. 3. Socrates. 4. Law-Philosophy. I. Plato. Apologia. English. 1980. II. Plato. Crito. English. 1980. III. Title. B365.A95 184 80-18193 ISBN 0-8166-09624 ISBN 0-8166-0965-9 (pbk.) The University of Minnesota is an equal-opportuntity educator and employer. For Ruth and Elisabeth Although I cannot say that I am utterly untrained in those rules which best rhetoricians have given or unacquainted with those examples which the prime authors of eloquence have written in any learned tongue, yet true eloquence I find to be none but the serious and hearty love of truth; and that whose mind is soever fully possessed with a desire to know good things, and with the dearest charity to infuse the knowledge of them into others, when such should speak, his words (by what I can express) like so many nimble and airy servitors trip about him at command, and in well-ordered files, as he would wish, fall aptly into their places. John Milton, Apology Introduction The association between Plato's Crito and Apology is close and na- tural. They were anciently grouped by Thrasyllus with the Euthyphro and Phaedo as members of a single tetralogy, the first, for the reason that they bear on the events of Socrates' trial and death. The scene of the Euthyphro is the Porch of the King Archon, where Socrates has come to answer in preliminary hearing the charges brought against him by Meletus; the Apology presents Socrates' courtroom defense and condemnation; the Crito, his refusal to escape the death sentence a few days before it was to be executed; the Phaedo, his last hours and death, and promise of immortality. This order has to do with the sequence of events described, not with the chronology of description. On stylistic grounds, the Phaedo must be classified as a middle dia- logue, written well after its tetralogical companions. But there is no compelling reason, stylistic or otherwise,to suppose that the Crito was written after rather than before the Apology,1 or for that matter the Euthyphro. It is sufficient to observe that they are works of Plato's early period, probably written between 399 and 387 B.C., when Plato was in his thirties. What follows is not meant as a commentary, which Burnet has ad- mirably provided. My aim has been to help the reader understand certain elements in the Apology and Crito which have often proved obscure, and the comment is relatively more full in dealing with the viii Introduction Crito than the Apology because of the greater complexity of the juris- prudential issues there raised. The interpretation of the Apology in- volves questions of literature, philosophy, and comparative law which have not, in general, been asked; the reasons for the peculiar kind of defense Socrates made at his trial have passed largely unrecog- nized, as has the complex irony which that defense displays, and the legal quality of the conviction. If this is reason enough for fresh com- ment on the Apology, the subtle and cogent argument of the Crito provides better reason still: for the Crito has not been well under- stood even by those professionally concerned to interpret it, with the result that one of the great masterpieces of legal philosophy in wes- tern literature has been made to seem philosophically trivial. If the account which follows succeeds in making the Apology better under- stood, and helps restore the Crito to its rightful place as a classic statement of the grounds of legal obligation, it will have served its purpose. Portions of the account have appeared elsewhere. The first chapter, "Irony and Rhetoric in Plato's Apology," was the Cowling Lecture in Philosophy for 1977 at Carleton College, where such colleagues and friends as David and Mary Alice Sipfle, Fred and Judy Stoutland of St. Olaf's, and Gary and Andrea Iseminger, added zest for teaching and hospitality to the slow glories of a Minnesota spring. A draft of the lecture in cruder form had previously been read to the classics departments at Princeton and Pittsburgh; it has since been published in Paideia. The chapter on legality, in much revised form, was first read in 1974 before the Faculty of Law, University of Toronto, as part of a series of seminars sponsored by the Canadian Commission on Law Reform; it was afterward published in Courts and Trials, edited by Dean M. L. Friedland and presented to The Right Honorable Borah Laskin, Chief Justice of Canada. The analysis of the Crito of- fered here was first presented in outline form in a paper entitled "Law and Justice in Plato's Crito," read as part of a symposium of the American Philosophical Association in 1971 given with Charles Kahn and G. E. L. Owen, and printed in the Journal of Philosophy for 1972. It remains to say that it is unlikely that the present form of this work would be as it is had it not been for Mrs. Clare Kirk- patrick, R.N., Nurse Clinician, who, out of sheer humanity, exhibited in practical application the truth of the Socratic theorem that the vir- tues are one, and especially the virtues of courage and wisdom. My debts are many and various. Jerome Hall first directed my at- tention to many of the jurisprudential problems here discussed. Har- old Cherniss was responsible for many improvements, and lent loyal Introduction ix support. John Swan and Ernest Weinrib, in a series of seminars on jurisprudence in the Faculty of Law, University of Toronto, taught me more philosophy than I would otherwise have known. Dean Eugene V. Rostow took time from a busy schedule to criticize my in- terpretation of the Crito in terms of his own valuable analysis in "The Rightful Limits of Freedom."2 The account that follows has also benefitted in many ways, indirect but certain, from the hospitali- ty and instruction of The Honorable Edwin H. Stier, Director of the Division of Criminal Justice of the State of New Jersey, and of Wil- liam F. Bolan, Jr., now Chief of the Educational and Legislative Ser- vices Section, who introduced me to the law in action at a level of highest professionalism, and confirmed my belief that many of the is- sues here discussed in terms of the past belong to the living present. It goes without saying that the mistakes which remain philosophical, philological, historical, and legal-are my own. Translations of the Apology and Crito have been included, not because the world is groaning for them—they have been well translat- ed already—but as an aid to the reader and a control on interpreta- tion. Translation and comment alike are much indebted to Burnet, whose scholarship does not wear out.