Legal Commentary

As Brian Tamanaha recently noted, it sometimes seems as if Plato anticipated most of the major issues in the philosophy of law.  One of these issues is the question of when, if ever, it is appropriate to disobey the law.  This issue is presented squarely in the Crito, where Socrates and Crito debate whether Socrates should flee into exile or should accept the jury?s sentence of death.  Crito has easily bribed his way into Socrates? jail cell, observing to Socrates that he has done the warden ?a good turn? (43a8).  The strong implication of the discussion in the Crito is that it would have been equally easy to bribe the warden to let Socrates escape to go into exile.  But Socrates ultimately refuses to go into exile, and accepts the death sentence.

Socrates? argument in the Crito presents two related problems.  First, speaking through the personified Laws of Athens, Socrates appears to take the autocratic position that it is always unjust to disobey the command of the law.  This is problematic because it appears to remove all other moral considerations from the issue of obedience to the law.  Second, Socrates? position in the Crito appears to be contrary to some of the positions that Socrates takes in the Apology.  In the Crito, Socrates argues that he must obey the death sentence imposed by the jury, but in the Apology he suggests that he will not obey a command from the jury to stop engaging in philosophy. 

These problems are well established in the literature on the Crito.  The typical way out of both is to argue that Socrates was being hyperbolic in the Crito, and that he would have disobeyed a law that required him to not engage in philosophy because obedience would have been inconsistent with Socrates? commitment to his personal god.  In this post, I want to develop a different argument as to why Socrates blanket statements about obedience to the law should not be taken at face value.  I will suggest that there is another scenario where Socrates might also disobey the law:  when obedience would be contrary to obligations owed to family and children.

This argument is counterintuitive, because Socrates appears to strongly reject the relevance of obligations to his children to the issue of whether he should accept his sentence or flee.  Crito initially suggests to Socrates that he should flee in part because of his obligations to his sons:

What?s more I think you?re also betraying those sons of yours by going away and deserting them when you could bring them up and educate them.  So far as you?re concerned, they must take their chances in life; and the chance they?ll get, in all likelihood, is just the one that orphans usually get when they lose their parents.  No.  Either one shouldn?t have children at all, or one ought to see their upbringing and education to the end.

(45c-d).  In response, Socrates powerfully dismisses the relevance of concerns about his children:

As for those other considerations you raise about loss of money and people?s opinions and bringing up children ? they, in truth, Crito, are appropriate considerations for people who readily put one to death and would as readily bring one back to life again if they could, without thinking; I mean the majority of people.

(48c).  As a result, it is easy to take Socrates at his word and come to the conclusion that he ?clearly supposes that considerations about prestige or children are not relevant to the consideration of whether or not it is just for him to escape.? (Harte, Verity (2005), ?Conflicting Values in Plato?s Crito?, in Plato?s Euthyphro, Apology, and Crito:  Critical Essays, Rachana Kamtekar, ed., 229-59, at p. 238.).

Socrates? dismissive comments, however, are not the last word on this issue.  Towards the end of the dialogue, speaking as the Laws of Athens, Socrates returns to the impact that his decision to accept the sentence or flee will have on his children:

?Is it that you want to live for your children?s sake, then, to bring them up and educate them by taking them to Thessaly and making foreigners of them, so they can enjoy that privilege too?  If not, will they be better brought up and educated here without you, provided that you?re still alive?  ?Of course,? you may say, because your friends will take care of them.  Then will they take care of them if you go to Thessaly, but not take care of them if you go to Hades?  If those who call themselves your friends are worth anything at all, you surely can?t believe that.?

(54a).  In this passage, the Laws of Athens make the case that it is best for Socrates? children if Socrates accepts his sentence of death.  If Socrates takes his children into exile, then they would become foreigners, which the Laws clearly see as an undesirable fate.  If Socrates leaves his children in Athens, then they will be raised by his able friends, including Crito, whether or not Socrates flees into exile or stays and is executed.

Immediately after this passage, the Laws go on to tell Socrates not to be concerned about his children, and to focus on what is just.  This admonition by the Laws, however, begs the question of what is the just course of conduct for Socrates to take.  In this particular instance, there was no conflict between Socrates? obligations to his children and his obligations to the laws.  Socrates was devoted to Athens, and for his children life as a citizen in Athens would be preferable life as a foreigner in another city.  Socrates was also an old man.  It is not necessary to give full credit to Xenophon?s assertion that Socrates provoked the jury into sentencing him to death to avoid the pains of old age (Socrates? Defense to the Jury, 6-7) to recognize that his time to be with his children would likely be limited.  Accepting his sentence therefore was plausibly the best outcome for his children.

What if it the factual scenario had been different?  Imagine that when he was convicted, Socrates was in his early 20s, and that another nearby city was nearly as attractive a society as Athens and offered citizenship to Socrates and his children.  In these circumstances, a serious conflict would arise between Socrates? obligations to his children and his obligations to obey the laws.

Would Socrates, confronted with these circumstances, say that it was just to remain in Athens and accept his sentence of death?  It is impossible to say for certain, but if considerations about Socrates? obligations to his children were truly irrelevant to the issue of justice, then there would have been no need for Socrates to return to the issue at the end of the Crito.  His contemptuous dismissal earlier in the dialogue would have been sufficient to address the issue.  Socrates did return to the issue, and established that there was no conflict between his obligations to his children and to the laws.

If Socrates? broad language in the Crito is seen as being hyperbolic in his assertion that disobedience to the law is always unjust, then his language dismissing the relevance of his obligations to his children can also be seen as hyperbolic.  In this reading of the Crito, Socrates? broad language is addressed to the correct course of conduct for Socrates in his particular circumstances, rather than the issue of just conduct more generally.  Because there was no conflict between Socrates? obligations to the laws, the god, and his children, it was just for Socrates to obey the law and accept his sentence.  If circumstances had changed, however, the outcome may have been different, and it may have been just for Socrates to disobey the laws.

Translations from C.D.C. Reeve, The Trials of Socrates

Ben Barros