Some Thoughts on the Rule of Law in Plato's Statesman

I recently had occasion to read Plato’s Statesman, an exceedingly difficult dialogue, which I do not understand. Perhaps the most famous discussion in the Statesman (at least the only discussion with which I was aware before reading it) concerns the comparative merits of the rule of man and the rule of law. The position articulated by the Eleatic Stranger in the dialogue is that the rule of the best man—the true knower of political science—without law is indeed ideal, but for various reasons this form of rule cannot be relied on, and so the rule of law is the second best.

Ideally, the rule of the true statesman without law is best because law can only deal with generalities, not the complexities of individual situations. This is a familiar argument found also in Aristotle and, unsurprisingly, Thomas Aquinas. In the words of the Stranger:

Because (a) law would never be capable of comprehending with precision for all simultaneously the best and the most just and enjoining the best, for the dissimilarities of human beings and of their actions and the fact that almost none of the human things is ever at rest do not allow any art whatsoever to declare in any case anything simple about all and over the entire time. (294 A-B. With apologies, I quote from the almost unintelligible Benardete translation)

Nevertheless, the Stranger offers a few distinct arguments in favor of the rule of law. The first (perhaps implicit) argument is that the rule of the best, even if possible, might be unwelcome by the people. Making a familiar Platonic analogy, the Stranger notes that the true doctor, in order to heal his patient, might need to violate their consent or subject them to painful treatments. Similar pain would necessarily accompany the (lawless) rule of the true statesman. The darkness of the Stranger’s description of this kind of political rule indicates that it will be predictably unacceptable by the people. This is an argument against the rule of the best on grounds of perceived illegitimacy:

It’s necessary then, it seems, that this too be of regimes the outstandingly right regime, and the only regime in which one might find the rulers truly with know-how and not only seeming to have it, regardless of whether they rule in conformity with laws or without laws, and over willing or unwilling (subjects), and themselves poor or rich, for one must not calculate in terms of any correctness any of these things in any way as a factor … And so regardless of whether they purge the city for the good by killing some or maybe exiling, or they make the city smaller by sending out colonies somewhere like swarms of bees, or they increase it by importing some different people from somewhere or other outside and making them citizens, as long as they are employing science and the just and, in keeping it safe, make it better from worse to the best of their ability, we must state that this then is the only right regime and in accordance with definitions of this sort. And all the rest we speak of, we must say of them that they are not genuine (legitimate) and in their being are not, but they have imitated this one, and some, which we speak of as with good laws, have done it with more beautiful results, and all the rest with some uglier. (293 D-E)

A second argument is that it will be practically impossible even for the true statesman to actually determine what is best for each individual citizen. Offering another familiar analogy to a sports trainer, the Stranger notes that collective leadership often requires reliance on adequate maxims and rules that work in the aggregate. This is an argument from practical epistemic limitations (295 A-B).

Finally, the Stranger suggests that it is unlikely if not impossible to ever discover a true statesman with full knowledge of political science. This hypothetical regime must be distinguished from all other regimes, he notes, “as a god from human beings” (301 B). Earlier, the dialogue has established that any vision of statesmanship that relies on an analogy to divine leadership must be rejected. This is why, for example, the Stranger rejects the image of the shepherd as the paradigm of statesmanship. That image implies the rule of a divine superior over men, when in fact politics consists in the rule of man over man:

I suspect that this figure of the divine shepherd is still too big to be in accordance with a king, and that those who are statesmen here and now are far more similar in their natures to the ruled than the divine shepherd is and have shared an education and nurture more nearly the same as theirs. (276B-C)

So the conclusion the Stranger draws is that rather than hope that a divine-like statesman comes to power, we must rely on the rule of written laws:

But as it is, since there is no king that comes to be in the cities, as we in point of fact assert, who’s of the sort that naturally arises in hives – one who’s right from the start exceptional in his body and his soul – they must, it seems, once they’ve come together, write up writings while they run after the traces of the truest regime. (301E)

So we have a weak argument here—we must accept the rule of law as a second best, the most practicable arrangement—immediately followed by a far more controversial thesis—we must never permit any alteration or violation of the laws. Even if the great lawgiver were to return, we must not permit him to revise any of the established laws. That prohibition applies even if those reforms would improve the laws. So the Stranger’s argument is not simply a practical defense of the rule of law as second best, it is a rigid repudiation of any legal reform whatsoever.

whoever has the nerve to act contrary to these writings is acting contrary to the laws that have been laid down on the basis of much trial and error, when certain advisers gave several pieces of advice in a neat and elegant way and persuaded the multitude to set them down, and he multiplies a mistake many times itself and would overturn every action to a still greater extent than the writings … It’s for these reasons that for those who lay down laws and writings about anything whatsoever, the prohibition against either any one or any multitude ever doing anything whatsoever contrary to them is a second sailing. (300 B-C).

(That use of "second sailing" is intriguing given the echo of Socrates in the Phaedo, as is the discussion's connection to Socrates' critique of writing in the Phaedrus, but let's set those points aside). 

This strong argument implies an account of the sanctity of the laws. The Stranger concedes that on this view, statesmanship is wholly different from all other sciences, which require constant innovation and improvement. He induces his interlocutor (a young man named Socrates, not the real Socrates who is largely a spectator in the dialogue) to accept the uniqueness of political science: 

“It’s plain: all the arts we have would completely perish, and they would never come to be at a later time on account of this law that forbids their search. And hence life, which even now is hard, would prove to be altogether unlivable throughout that time” (299 E). 

What is true of statesmanship would be fatal to all other sciences.

So the Stranger ultimately defends radical conformity to the inherited laws and rules out any reform whatsoever. Perhaps we might modify the Stranger’s suggestion to be that any reform of the laws must not appear to be an innovation but must instead be justified as consistent with the ancient laws. The other sciences derive their public legitimacy from a promise of constant innovation and improvement. If a doctor were to tell a patient “I like to stick to the old ways in treating cancer,” the patient would reasonably find a new doctor. But for some reason the public legitimacy of political science relies much more firmly on tradition.

This discussion recalls a few other classical statements on the need for a rigid adherence to law and a rejection of innovation. In Book 2 of the Politics, for example, Aristotle takes up the example of Hippodamus of Miletus, who sought to incentivize continual political innovation: “He also wanted to enact a law concerning those who discover something useful to the city, so that they might obtain honor” (1268 A, quoting from the Lord translation). This proposal raises the question of whether political science is like the other sciences in profiting from continual experimentation and innovation:

This has been advantageous, at any rate, in the other sciences—medicine, for example, has changed from its traditional ways, and gymnastic, and the arts and capacities generally, so that as political expertise too is to be regarded as one of these, it is clear that the same must necessarily hold concerning this as well. (1268 B)

Aristotle acknowledges that in general it is better to seek the good not the traditional, and precisely because the law is a second best—concerning the general not the particular—laws must be periodically reformed. Still, he insists on a disanalogy between political science and the other sciences, and so he rejects a normalization of political reform: 

some laws must be changed at some times; yet to those investigating it in another manner this would seem to require much caution. For when the improvement is small, and since it is a bad thing to habituate people to the reckless dissolution of laws, it is evident that some errors both of the legislators and of the rulers should be let go; for the city will not be benefited as much from changing them as it will be harmed through being habituated to disobey the rulers. And the argument from the example of the arts is false. Change in an art is not like change in law; for law has no strength with respect to obedience apart from habit, and this is not created except over a period of time. Hence the easy alteration of existing laws in favor of new and different ones weakens the power of law itself. (1269 A)

Similar discussions are found in Thucydides’ History of the Peloponnesian War. In the early debate in Sparta over whether the Spartans should declare war on Athens, the Corinthians criticize Sparta for their conservative refusal to depart from ancient ways. It is this rigid adherence to law that has allowed the Athenians to surpass them. The Corinthians implore the Spartans to embrace innovation and to join the war against Athens:

The Athenians are addicted to innovation, and their designs are characterized by swiftness alike in conception and execution; you have a genius for keeping what you have got, accompanied by a total want of invention, and when forced to act you never go far enough. Again, they are adventurous beyond their power, and daring beyond their judgment, and in danger they are sanguine; your wont is to attempt less than is justified by your power, to mistrust even what is sanctioned by your judgment, and to fancy that from danger there is no release. … in the present instance, as we have just shown, your habits are old-fashioned as compared with theirs. It is the law as in art, so in politics, that improvements ever prevail; and though fixed usages may be best for undisturbed communities, constant necessities of action must be accompanied by the constant improvement of methods. Thus it happens that the vast experience of Athens has carried her further than you on the path of innovation.

One of the Spartan speakers, King Archidamus, counsels continued adherence to the ancient Spartan ways. He warns against war with Athens on grounds that (1) the Spartans are unprepared; and (2) such a radical departure from traditional Spartan policy would undermine the sources of Spartan greatness:

The quality which they condemn is really nothing but a wise moderation; thanks to its possession, we alone do not become insolent in success and give way less than others in misfortune; we are not carried away by the pleasure of hearing ourselves cheered on to risks which our judgment condemns; nor, if annoyed, are we any the more convinced by attempts to exasperate us by accusation. We are both warlike and wise, and it is our sense of order that makes us so. We are warlike, because self-control contains honour as a chief constituent, and honour bravery. And we are wise, because we are educated with too little learning to despise the laws, and with too severe a self-control to disobey them, and are brought up not to be too knowing in useless matters—such as the knowledge which can give a specious criticism of an enemy’s plans in theory, but fails to assail them with equal success in practice—but are taught to consider that the schemes of our enemies are not dissimilar to our own, and that the freaks of chance are not determinable by calculation.

Under the influence of a more passionate (and briefer) Spartan speech, the Spartans ultimately vote to abandon their ancient reticence and to join the war.

A parallel discussion is found in the Mytilenean debate, in which the Athenians debate whether to reverse their decision of the previous day to massacre all the inhabitants of Mytilene. Cleon, an Athenian general, denounces the Athenian democracy for its inconstancy, and insists that even if the decision to massacre the Mytileneans was a mistake, it must not be reversed:

I have often before now been convinced that a democracy is incapable of empire, and never more so than by your present change of mind in the matter of Mitylene. Fears or plots being unknown to you in your daily relations with each other, you feel just the same with regard to your allies, and never reflect that the mistakes into which you may be led by listening to their appeals, or by giving way to your own compassion, are full of danger to yourselves, and bring you no thanks for your weakness from your allies; entirely forgetting that your empire is a despotism and your subjects disaffected conspirators, whose obedience is ensured not by your suicidal concessions, but by the superiority given you by your own strength and not their loyalty. The most alarming feature in the case is the constant change of measures with which we appear to be threatened, and our seeming ignorance of the fact that bad laws which are never changed are better for a city than good ones that have no authority; that unlearned loyalty is more serviceable than quick-witted insubordination; and that ordinary men usually manage public affairs better than their more gifted fellows. The latter are always wanting to appear wiser than the laws, and to overrule every proposition brought forward, thinking that they cannot show their wit in more important matters, and by such behaviour too often ruin their country; while those who mistrust their own cleverness are content to be less learned than the laws, and less able to pick holes in the speech of a good speaker; and being fair judges rather than rival athletes, generally conduct affairs successfully. These we ought to imitate, instead of being led on by cleverness and intellectual rivalry to advise your people against our real opinions.

This speech is countered by that of Diodotus, who persuades the Athenians to rethink their earlier, rash decision and thus celebrates deliberation (and change) as a wise course for democratic politics.

Returning to the Statesman, the Stranger’s argument raises a general puzzle about politics as a science. If politics is in fact a science—that is, a form of knowledge—then it is subject to progress and improvement. Political science can advance even if it can never be perfected. But an interesting feature, by hypothesis, of political science is that it itself counsels against improvement. This is because, as Aristotle put it, one unique feature of law is that it derives its strength from the habit of obedience. As we have seen, political science thus differs from the other sciences, whose very legitimacy derives from a belief in progress and improvement. We want our doctors to rely on “cutting edge” science, not to adhere to the customary ways. Political science uniquely—for the sake of its public legitimacy and effectiveness—disavows its claim to the status of science.