Xenophon on Law and Violence
The Greek philosopher Xenophon, pupil of Socrates, was certainly no libertarian; but his writings contain a number of delightful passages pointing in a libertarian direction. Two of the best follow. In his Memorabilia, or Recollections of Socrates, Xenophon reports what scholars generally agree is his own invented conversation between the complacent democratic politician Pericles and his youthful ward Alcibiades. Xenophon shows, through Alcibiades' words, how the democratic case against oligarchy and tyranny is an equally good case against democracy itself:
Thus the story is told of Alcibiades ' how before the age of twenty he engaged his own guardian, Pericles, at that time prime minister of the state, in a discussion concerning laws. Alcibiades: Please, Pericles, can you teach me what a law is? Pericles: To be sure I can. Alcibiades: I should be so much obliged if you would do so. One so often hears the epithet 'law-abiding' applied in a complimentary sense; yet, it strikes me, one hardly deserves the compliment, if one does not know what a law is. Pericles: Fortunately there is a ready answer to your difficulty. You wish to know what a law is? Well, those are laws which the majority, being met together in conclave, approve and enact as to what it is right to do, and what it is right to abstain from doing. Alcibiades: Enact on the hypothesis that it is right to do what is good? or to do what is bad? Pericles: What is good, to be sure, young sir, not what is bad. Alcibiades: Supposing it is not the majority, but, as in the case of an oligarchy, the minority, who meet and enact the rules of conduct, what are these? Pericles: Whatever the ruling power of the state after deliberation enacts as our duty to do, goes by the name of laws. Alcibiades: Then if a tyrant, holding the chief power in the state, enacts rules of conduct for the citizens, are these enactments law? Pericles: Yes, anything which a tyrant as head of the state enacts, also goes by the name of law. Alcibiades: But, Pericles, violence and lawlessness ' how do we define them? Is it not when a stronger man forces a weaker to do what seems right to him ' not by persuasion but by compulsion? Pericles: I should say so. Alcibiades: It would seem to follow that if a tyrant, without persuading the citizens, drives them by enactment to do certain things ' that is lawlessness? Pericles: You are right; and I retract the statement that measures passed by a tyrant without persuasion of the citizens are law. Alcibiades: And what of measures passed by a minority, not by persuasion of the majority, but in the exercise of its power only? Are we, or are we not, to apply the term violence to these? Pericles: I think that anything which any one forces another to do without persuasion, whether by enactment or not, is violence rather than law. Alcibiades: It would seem that everything which the majority, in the exercise of its power over the possessors of wealth, and without persuading them, chooses to enact, is of the nature of violence rather than of law? To be sure (answered Pericles), adding: At your age we were clever hands at such quibbles ourselves. It was just such subtleties which we used to practise our wits upon; as you do now, if I mistake not. To which Alcibiades replied: Ah, Pericles, I do wish we could have met in those days when you were at your cleverest in such matters. (Xenophon, Memorabilia, trans. H. G. Dakyns (New York: Macmillan, 1897).)
Xenophon returns to the subject of lawfulness versus violence in The Education of Cyrus, arguably the first historical novel, which presents a fictionalised account of the upbringing of the young Persian prince who will grow up to be Cyrus the Great. In the following passage, Xenophon has Cyrus describe his training in judicial arbitration; the passage is a telling anticipatory reply to the Coase-Posner approach to law, which recommends rendering verdicts in accordance with social utility rather than antecedent rights:
Then said his mother, 'But justice and righteousness, my son, how can you learn them here when your teachers are at home?' 'Oh,' said Cyrus, 'I know all about them already.' 'How do you know that you do?' asked Mandane. 'Because,' answered the boy, 'before I left home my master thought I had learnt enough to decide the cases, and he set me to try the suits. Yes! and I remember once,' said he, 'I got a whipping for misjudgment. I will tell you about that case. There were two boys, a big boy and a little boy, and the big boy's coat was small and the small boy's coat was huge. So the big boy stripped the little boy and gave him his own small coat, while he put on the big one himself. Now in giving judgment I decided that it was better for both parties that each should have the coat that fitted him best. But I never got any further in my sentence, because the master thrashed me here, and said that the verdict would have been excellent if I had been appointed to say what fitted and what did not, but I had been called in to decide to whom the coat belonged, and the point to consider was, who had a right to it: Was he who took a thing by violence to keep it, or he who had had it made and bought it for his own? And the master taught me that what is lawful is just and what is in the teeth of the law is based on violence, and therefore, he said, the judge must alwayts see that his verdict tallies with the law. So you see, mother, I have the whole of justice at my fingers' ends already. ...' (Xenophon, The Education of Cyrus, trans. H. G. Dakyns (London: J. M. Dent & Sons Ltd, 1914), pp. 15-16.)
This passage could be read either as an outright rejection of utilitarianism, or else as a rejection of direct utilitarianism in favour of indirect utilitarianism. David Hume reads it in the latter way:
Cyrus, young and unexperienced, considered only the individual case before him, and reflected on a limited fitness and convenience, when he assigned the long coat to the tall boy, and the short coat to the other of smaller size. His governor instructed him better, while he pointed out more enlarged views and consequences, and informed his pupil of the general, inflexible rules, necessary to support general peace and order in society. (David Hume, Enquiry Concerning the Principles of Morals, Appendix III.)
Hume's Xenophon thus sounds rather like Hayek. But Xenophon's original text says nothing about 'consequences' or 'general peace and order,' so it's unclear whether Hayek or Rothbard is the better comparison. I've long held that Xenophon is a severely underrated thinker. For more on his (admittedly inconsistent) libertarian aspects, see my forthcoming article 'Socrates and Early Socratic Philosophers of Law' (co-authored with R. F. Stalley) in Fred D. Miller, Jr., ed., A History of Philosophy of Law from the Ancient Greeks to the Scholastics (Dordrecht: Kluwer Academic Publishers, forthcoming 2004 or 2005).