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IV Justice and Law
Published online by Cambridge University Press: 16 July 2020
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The fifth century is the century of nomos, a concept difficult to translate, as it covers several different semantic fields. Usually nomos is rendered as ‘law’, but this is a reductive translation, since the term describes not just positive laws but also traditions, customs, and established practices. Besides, as Aristotle was to observe, the two meanings ‘law’ and ‘tradition’ are closely related: ‘For the law has no power to command obedience except that of habit, which can only be given by time’ (Politics, 1269a20). In short, nomos is anything which is assigned some value, any norm accepted by a group. From the late sixth century onwards, this term acquired a central place in the Greek world, becoming a privileged object of reflection for the sophists. The most significant element is its spread as a technical term for written law, particularly in Athenian democracy. Prior to this, it chiefly referred to customs and traditions. Yet its growing importance is not devoid of problematic aspects. The greater economic and political stability attained through the victorious wars against the Persians led to an increase in travel, cultural exchanges, and trade, which contributed to broadening the perspectives and knowledge of the Greeks. One of the most striking observations they made concerned the wide range of laws and traditions in force in the various cities and states: nomos is indeed a crucial value, as the law and tradition governing the life of a community; but it is in any case relative, as it varies from city to city. The acknowledgement of the relativity of nomos is a central theme in fifth-century literature, as may be inferred from some famous passages by Pindar, Herodotus, and Aeschylus. At first sight, the conclusions reached by these authors would appear to emphasize the capacity of nomos to impose itself: as a verse by Pindar states, nomos ‘is the king of all things’ (fr. 169a Snell-Mähler). Yet the ascertainment of the range of laws and traditions in existence could also lead to moral relativism and to the conclusion that there are no absolute, universal or objective values (Dissoi logoi, 90, 2.18 D.-K. = 40, 2.18 L.-M.).
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References
1 Ostwald 1969.
2 De Romilly 2005: 49–66.
3 Heinimann 1945.
4 Hoffmann 1997.
5 See now Gavray 2017.
6 Neschke-Hentske 1995: 56–9.
7 See also Denyer 2013: 167.
8 It is worth noting once more that, obviously, the laws will apply ‘so long as the city thinks [or: adopts this law, nomizein]’: as a human product, no law can claim to have absolute and everlasting validity.
9 For an analysis of these problems, see Bonazzi 2011 and Manuwald 2013.
10 For an in-depth investigation of these topics and further bibliographical references, see Farrar 1988: 81–99; Bonazzi 2004; Balla 2018: 91–101.
11 Moreover, we should not overlook the fact that, while Zeus is the one who bestows these two virtues on humanity, he does not concretely define what comprises them by making their content explicit: in other words, justice is not a divine revelation, but something that humans must achieve together. In this sense, the mythological framework does not conflict with the agnosticism of fragment 80B4 D.-K. (= 31D10 L.-M.).
12 Later in the dialogue, Protagoras speaks of political virtue as human virtue (andros arete) tout court (Prot. 325a); on this issue see also Beresford 2013.
13 Casertano 1971: 124.
14 Decleva Caizzi 1999: 319.
15 Pl. Prot. 325c5–326e5. See also Vegetti 1989: 51.
16 See Bonazzi 2011.
17 Sihvola 1989: 39–48.
18 In all likelihood, another implicit polemical aim of Protagoras’ thesis is to be found in those ‘unwritten and unfailing ordinances (nomima) of the gods, which have life, not simply today and yesterday, but for ever’ (Sophocles, Antigone, 453–5) – on which see e.g. De Romilly 2005: 27–48. Nor can it be ruled out that, in emphasizing the importance of these unwritten laws, fifth-century authors such as Sophocles were precisely targeting positivists such as Protagoras and Pericles: see Bonazzi 2017: 112–24, in the footsteps of Ehrenberg 1957.
19 Kerferd 1981a: 144. A particularly important study on this topic is Farrar 1988. In order to better evaluate Protagoras’ thesis – and, more generally, those of Athenian democracy – we must distinguish between the theoretical level and that of concrete praxis. The reason for this is that Athenian democracy has often been accused of being anything but a ‘democracy’, given that roughly three-quarters of the population (women, slaves, and foreigners resident in Attica) were barred from political participation. These are undeniable historical facts. Yet in no way do they weaken the interest of theories such as those of Protagoras or Pericles, who promote an important elaboration of the concept of democracy, understood as the government of the community. Ideas of this sort still preserve all their importance today, regardless of the inconsistent way in which they were applied in fifth-century Athens.
20 What proves crucial in this respect is the testimony of Thucydides, who, when discussing the democratic ideology, repeatedly adopts the same perspective as Protagoras. The most clear-cut stance is expressed in Athenagoras’ speech in Book 6: ‘democracy (demos) is the name for all, oligarchy for only a part’ (Thuc. 6.39). No less important is Pericles’ famous funerary speech for the fallen of the first year of war, in which democracy is described as the government not of ‘the few’ but of ‘the many’ for ‘everyone’ (on this climax, see Musti 1995: 3–13).
21 For some interesting parallels, see Thuc. 2.40.2 and 2.60.2–4 (Pericles’ speech), and Hdt. 5.78.
22 Farrar 1988: 81–7.
23 In particular, in addition to the aforementioned passages by Thucydides, it is worth mentioning the famous comparison between the various forms of government found in Herodotus 3.80–2. Finally, it is worth recalling that the seventh section of the Dissoi logoi also discussed democracy and how best to safeguard it.
24 More generally, on the possible circulation of contractualist theories in the fifth century, see Guthrie 1971: 135–47 and Kahn 1981.
25 Note the importance of this concept: see Chapter 3, p. 48.
26 Isnardi Parente 1969: 172.
27 Dodds 1959: 12–15.
28 See Dodds 1959: 387–91.
29 A similar reasoning, intended to show the weakness of the strong, is also to be found in the Anonymus Iamblichi (89.6 D.-K. = 40.6 L.-M.).
30 Fussi 2006: 203–20.
31 Vegetti 2018: 198.
32 The most significant text, not least because of the numerous affinities it has with the sophists, is the anonymous Constitution of the Athenians, with regard to which I will refer to Lapini 1997 and Gray 2007; also very interesting is Xenophon, Memorabilia, 1.2.40–6.
33 For a reconstruction of the different hypotheses that have been put forward (to show either the coherence or the incoherence between the two theses, and to favour one or the other), see Macé 2009: 159–62 and, most recently, with further bibliography, Barney 2017, Wedgwood 2017, and El Murr 2019.
34 Vegetti 1998: 240–7.
35 Vegetti 1998: 240–2.
36 This juxtaposition might seem even more surprising if we consider the fact that most scholars tend to interpret Antiphon not just as a champion of physis but as the first spokesman for natural justice. However, this reading is based on an erroneous reconstruction of the papyrus transmitting 87B44 D.-K. (=37D38b L.-M.), as may be inferred from the recent discovery of another part of the same papyrus: see the edition of Bastianini and Caizzi 1989 (which I follow for the column order) and the point made by Narcy 1996.
37 In my analysis of this fragment, I am partly drawing upon Bonazzi 2020, which I refer to for further bibliographical references. Ostwald 1990 remains the most useful introduction.
38 See Furley 1981.
39 Hourcade 2001: 115.
40 Farrar 1988: 115–18. In passing, it goes without saying that these conclusions have anti-democratic implications. Naturally, by this I do not mean to say that it is possible to infer from the surviving fragments of Antiphon's On Truth that he openly sided against democracy: on the contrary, what makes Antiphon's analyses so intriguing is his claim that he is not taking any stand himself, but wishes the dynamics of natural and social reality to emerge on their own. Still, it must be noted that his analyses of humans and society, his systematic emphasis on the essentially anti-social character of human beings, and hence his privileging of the needs of the individual over the collective rights of citizens constitute one of the most dangerous attacks on Athenian democracy, which was founded on the identification of the common good with the interests of individuals. The ‘atomization’ of common interest into many private and mutually conflicting interests amounts to the de facto impossibility of finding the kind of common good which, in the eyes of Protagoras and Pericles, was the distinguishing trait of democracy.
41 Decleva Caizzi 1999: 327.
42 See H. Patzer 1974. Critias’ aims are quite clear: an unrelenting struggle against democracy, in an attempt to import into Athens the values of the oligarchic ideology of Sparta. On this, see Bultrighini 1999 and Iannucci 2002.
43 See Chapter 6, p. 119.
44 Ostwald 1986: 282.
45 Untersteiner 1954: 278–83.
46 Decleva Caizzi 1985: 203–8, has hypothesized that Socrates’ thesis specifically has Antiphon as its polemical target.
47 See p. 73, n. 19.
48 Guthrie 1971: 148–63.
49 Decleva Caizzi 1986b. Antiphon's polemic becomes even more significant if, as seems likely, the sophist and the oligarchical rhetor were one and the same person: in this case, Antiphon would have criticized slavery not on humanitarian grounds, but in order to once again highlight the limits ‘of the lame egalitarianism of the democratic polis’ (Canfora 2001: 215).
50 Isnardi Parente 1977: 32–3.
51 Bonazzi 2008: 66–8.
52 Guthrie 1971: 160.
53 Nietzsche 1964: 249.