Can Justice Speak Justly?
The Acropolis by Constantinou Dimitrios (1865). Wikimedia Commons.
Imagine you are standing before the King’s Magistrate in Athens in 399 BC when you witness Socrates, weeks before his trial, ask the following of Euthyphro: ‘Is something pious because it is loved by the gods, or is it loved by the gods because it is pious?’ [1]
This question, the Euthyphro Dilemma, has echoed throughout philosophical and religious discourse ever since it was first posed. Euthyphro, who sought to prosecute his own father for the crime of murder, does so with the belief that it is just and appealing to the gods; that is, before Socrates muddies Euthyphro’s understanding of juristic morality and authority.
Put simply, if Euthyphro accepts that pious things are deemed pious because they are loved by the gods, he admits that piety is arbitrary and the subject of unreasonable and authoritative whims. However, if what is loved by the gods was pious before being loved, there ceases to be a need for authority and piety becomes self-evident. [2]
The Euthyphro Dilemma has significant implications within the context of jurisprudential thought. Let us pose the question to ask, simply, ‘Is the law just because it is the law or is it the law because it is just?’ Much like Euthyphro, we may find ourselves conflicted in trying to reach an answer and slightly angry that Socrates bothered us with his philosophical antics.
Is it Just because it is the Law?
The first path we can choose is accepting that it is the quality of being a law which gives a statute or common law precedent this character of being just. For Socrates, like Hobbes, this does not mean that it is by a law’s existence that it has a just nature but rather, it is the status of ‘law’ which must be appreciable as morally sound.
Positivists like Hart agree that questions of what the law ought to be should not detract from the fact that laws exist and that they should be obeyed. It could be argued that obedience imbues a law with a just disposition. Socrates may be inclined to agree.
Before Hobbes coined the phrase, Socrates was aware that individuals entered into a social contract; that is to say, we as individuals have agreed to uphold the law to prevent anarchy and vigilantism. Regardless of whether the laws we uphold are just, the fact that they are observed and adhered to means that no individual is above the law and society may flourish. To put it axiomatically: a) laws are to be obeyed, b) obedience to the law promotes social flourishing, c) social flourishing is just, d) laws are just. In Crito, Socrates is recorded as having stated that he must accept the death penalty because it is the law and it would be just to do so. [3]
The issue with accepting this first premise is that we must either believe obedience to unjust laws is, paradoxically, just or that no law is unjust because parliamentarians and judges are authorities which do not make mistakes. Euthyphro himself had trouble mediating the competing moralities of the Athenian gods and we have the same problem with 21st century Australian legislators.
It is Law because it is Just
Conversely, in re-appropriating this Socratic dilemma, we may respond to the first premise by asserting that a particular mandate only ascends to the status of law because, on its own merits, it is fair. As Euthyphro observed, if legal authorities (or gods) instate laws because they are (by themselves) just, then the role of the lawmaker is nullified.
The second head of Socrates’ argument aligns with Natural Law theorists, who have argued that what we call the law is merely the realisation of intrinsic moral principles that inform good behaviour. These principles, they argue, are common to all individuals. To this end, parliamentarians and lawmakers serve to merely codify what all human beings would naturally consent to.
But we know not all laws are consented to. There would be no need for law reform assessments, protests, outcry or the ALRC if lawmakers were simply enacting what the Australian population universally agreed upon. The law is complex and ever-changing. The only thing consistent about the law is that it is dynamic, not only because of changing legal principles, but owing to shifts in morality as well.
In Plessy v Ferguson, [4] the Michigan Supreme Court was tasked with determining whether a domestic statute precluded the intermingling of peoples based on race. The judgement in this case exemplifies the school of legal realism, whereby judges expressed that although, it might once have been the objective of ‘the courts to cater to or temporise with a prejudice’, the law could not be interpreted that way anymore due to ‘the changed feeling of our people towards the African race.’ [5]
While this novel development is, from our modern-day perch, more commendable, it does not answer why societies undergo paradigmatic, moral change, only that they do and this, in some way, affects the law.
A Third Premise?
Truthfully, everything written thus far may as well be a red herring. We’ve been exploring dilemmas through the lens of the Ancient Greeks who envisioned them like the horns of a bull; one can either take the left horn or the right horn. But, like Phaedrus, we can break the horns and accept neither premise.
Perhaps laws are obeyed, not because they are laws or that disobedience would produce chaos, but because such laws are truly just. The just nature of these laws needs not be the byproduct of their inherent merits but the result of serious inquiry and judicial thought into their character. It may even be argued that obedience is one of the metrics by which we gauge a law’s fair character; that a law should only be obeyed insofar as it is moral. In the same axiomatic vein as the first premise, if a law is just and just things ought to be obeyed, only just laws should be obeyed.
Or, perhaps this is a hopeful reconciliation of the two premises. After all, what of just laws that are disobeyed by individuals who want to see society burn? Like Magritte, who had the audacity to point to a pipe and tell us it wasn’t one, can we point to a just law and say why it is so or why we obey it?
[1] Nina Valiquette Moreau, ‘Civic Piety: Plato and Reverence for the Rule of Law’ (2017) 38(3) History of Political Thought 385-386.
[2] Gerald K. Harrison, ‘The Euthyphro, Divine Command Theory and Moral Realism’ (2015) 90(1) Philosophy 107-108.
[3] N. A. Greenberg, ‘Socrates’ Choice in the Crito’ (1965) 70 Harvard Studies in Classical Philology 47.
[4] Plessy v Ferguson, [1896] 163 US 537.
[5] Ibid 720-721.
This article was originally published under the title ‘Socrates, Euthyphro, and the Law: What makes a Law Just?’ in The Brief Edition 2, 2024 — Ceci n’est pas une loi.