How important (and in what ways) is the concept of no/mov in the texts of the Greek Core? How do these texts contribute to, or reflect upon, the so-called ‘nomos-phusis controversy’?
Through the fifth century BCE there existed, in Greek literature, a form of dialogue regarding the terms nomos and phusis. The terms appear to have been loosely defined at first but by the end of the fifth century they took on more fixed meanings in philosophy and literature as well as politics. Guthrie holds that nomos was conceptualized as existing in two forms as described below.
“i)usage or custom, based on traditional beliefs, as to what is right or true, ii) laws formally drawn up and passed which codify ‘right usage’ and elevate it into an obligatory norm backed by the authority of the state. The first was the earlier use, but was never lost sight of.”[1]
On the other hand phusis was seen as nature, or perhaps physical reality or even scientific truth, and so in setting up a distinction between the two we may define nomos as custom or law and phusis as nature. It should already be clear that these two concepts may not be mutually exclusive and the idea of a ‘Natural Law’ will not be anything new to the reader, but equally so the possibility that law and custom arise from nature leads to questions of whether there has to be a distinction between the two. In this essay I shall consider what a reading of the core texts might provide toward any debate regarding these terms and whether or not they provide an insight into or reflection of either a nomos/phusis conflict or perhaps a less antagonistic relationship between the two.
We shall begin with Pindar from whom we have the gnomic wisdom that ‘nomos, is king of all’[2] and the first question we should take into consideration is what Pindar means by nomos? Throughout the odes the idea that the victor, though resplendent in his triumph, should keep a eye turned to windward as regards the gods is a repeated theme; from the outset of Olympian 1 Pindar is careful to make the point
“It is proper for a man to speak
well of the gods, for less is the blame.”[3]
And again
“But for my part, I cannot call any of the blessed gods
a glutton – I stand back:
impoverishment is often the lot of slanderers.”[4]
Pindar’s god-fearing sentiments suggest an understanding of nomos which is much less based on the second of Guthrie’s definitions but rather on a more traditional and superstitious idea of convention in conjunction with the rule of the gods.
He also contributes a theological basis for human endeavor and achievement, in Pythian 1 he makes it clear where human success originates.
“For from the gods come all the means for human
achievements,”[5]
And equally Pindar sees it that it is by ruling in accordance to the will and aid of the gods that a ruler can best bring peace to the state.
“For with your help a man who is ruler
and instructs his son can in honoring his people
turn them to harmonious peace”
So what we’re seeing as nomos in the Pindaric odes is a form of divinely ordained natural law arbitrated by the gods rather than a strictly man-made convention in accordance with human or state law. This definition is by no means exclusive to Pindar and indeed much later in the works of Euripides we can see a similar conception of nomos as that which is enacted in accordance with divine or traditional convention. If we consider the ‘rule’ that the servant brings up at line 93 of the Hippolytos, “to hate what’s haughty and not friend to all” we see that this is described in line 91 as nomos and of course it has direct relevance to the gods, as to not follow this convention is to invite divine retribution. Equally in the Aias we are given a warning as to what may happen should we step out of line and upset the gods.
“Look, then, at such things, and never yourself utter an arrogant word against the gods, nor assume conceit because you outweigh another in strength or in profusion of great wealth.”[6]
On the surface of things the texts suggest that nomos, as convention or law, should be tied to divine law and whether or not this originates from or is simply perpetrated by the gods is unclear but in matters human somewhat irrelevant given its subjugating power. Nonetheless we may find we have only scratched the surface of a much subtler dialogue regarding the relationship between custom or law and the power of nature, and much rather than this dualism suggested in the above discussion there is also posited an antithesis between the two. The Hippolytos and the Bacchae both give examples of what happens when human law conflicts with the divine law, we see Hippolytos’ arrogance and self-law of celibacy bring about disaster for him, his father, and his stepmother and clearly here there exists a conflict between man-made nomos (even if it be the individual) and divine nomos, we should consider especially Hippolytos’ tirade against women at 616ff as an example of this. So too in the Bacchae we see Pentheus’ attempts to legislate against Dionysos and his Bacchants as leading to his eventual destruction; it is of considerable importance here that the chorus sing.
“To be clever is not to be wise, and thoughts that go beyond mortal limits spell a short life.”[7]
This should be understood in light of the sophistic movement within Greece at the time it was written, we learn, in slightly tongue in cheek fashion, from Aristophanes’ Clouds that there were men who were challenging even the most basic of conventional beliefs
“Strepsiades: By the earth, you don’t mean to say
that Zeus is not an Olympian god?
Socrates: What do you mean “Zeus”? Stop gibbering
Zeus doesn’t exist.”[8]
Much of what Euripides appears to be talking about in the Hippolytos and Bacchae is a reaffirmation of traditional values more in line with those of Pindar than of sophists such as Anaxagoras or Protagoras: regard for the gods and an understood limit to human capacity. So far we have understood nomos and phusis as existing in balance with one another, and before going on to consider if we have any evidence of nomos taking on more importance it is necessary to examine the opposite of this, that is, the dominance of phusis over man-made law.
In the dialogue Gorgias, the speaker Callicles accuses Socrates of having steered the conversation into something of a narrow channel.
“Although you claim to be pursuing the truth, you’re in fact bringing the discussion around to the sort of crowd-pleasing vulgarities that are admirable only by law and not by nature. And these, nature and law, are for the most part opposed to each other.”[9]
This conflict between nature and law is also raised in Antiphon’s On Truth, which posits that law in nearly every case is a direct contravention of nature and that the only laws are those which nature herself imposes upon us, a precursor perhaps to the negative liberalism of Doug Stanhope some two and a half thousand years later.
“You’re born absolutely free except for laws of nature, if you drink you get drunk, that’s a law, if you get old you die, that’s a law too; if you sit on a tack you will bleed from the ass, these are the only laws that you’re born with.”[10]
An extreme antithesis and a conception of nomos as being something wholly unnatural and not only opposite to nature but in direct conflict with it; we can contrast this with the funeral oration of Pericles
“We give obedience to those whom we put in positions of authority, and we obey the laws themselves, especially those which are for the protection of the oppressed, and those unwritten laws which it is an acknowledged shame to break.”[11]
Here we see both of Guthrie’s definitions of nomos at work for Pericles refers to both the state ordained laws and those ‘unwritten’ laws which are most likely conventional or traditional practices understood outside the letter of the law. It goes without saying but this obedience to law is seen as one of Athens’ shining characteristics that makes her what she is. Furthermore we see in Herodotus a similar role for nomos in Demaratus’ conversation with Xerxes regarding the Spartans.
“The point is that although they’re free, they’re not entirely free: their master is the law, and they’re far more afraid of this than your men are of you. At any rate they do whatever the law commands, and its command never changes.”[12]
In this sense man-made convention has a stronger hold over the individual than the far less complex and presumably more ‘natural’ fear of a single strong ruler who will inflict the type of punishments commensurate with a Hobbesian state of nature. The rule of the strong is referred to in both the Gorgias and Republic but equally we find it in the Aias too and it is in the defeat and destruction of the hero that we can see a more developed view of nomos in accordance with that of Herodotus’ Demaratus and Thucydides’ Pericles.
The character of Aias reflects Kerferd’s view that “when a really strong and noble personality arises he will break out of the bondage of convention”[13] in that he refuses to submit to the judgment of the majority and actively seeks individual redress against those who have offended him. In doing so he acts as a man who exists in a state of nature as opposed to one familiar with the nature of a state[14], Agamemnon makes the point about what follows if the majority decision is to be overturned.
“If such behavior is allowed, no law can be established.”[15]
Significantly Aias has already used the word nomoi to describe the chorus of Salaminian sailors and it seems to translate as referring to his ‘loyal’ followers bound to him through custom as opposed to strict legality. His conception of nomos is a brutal, archaic and Homeric notion of personal loyalties mixed with the heroic mission of harming one’s enemies and aiding one’s friends. In contrast to this we have the character of Odysseus who not only recognizes the importance of majority rule but equally tempers the complete ascendance of man-made law with the more conventional respect for the gods.
“So you cannot dishonor him without injustice; for you would be destroying not him, but the laws of the gods.”[16]
It is the advice of Odysseus that eventually saves the body of Aias from desecration and so too saves the Atridae from dishonoring the unwritten law of the gods that demands the body be given proper burial. In effect we have in Odysseus a far more developed fifth century conception of nomos as being man-made convention with a democratic undercurrent but one that nonetheless held to certain unwritten codes of conduct, in other words exactly as Pericles describes in his funeral speech.
We should now consider the counter argument to Antiphon’s rejection of nomos in favor of the natural ‘law’ of phusis for so far we have seen that both operate in conjunction with one another and that no fundamental antithesis is apparent in the texts other than when men overstep the boundaries of custom and invite destruction upon themselves. Herodotus, interestingly, cites Pindar in his histories
“I think Pindar was right to have said in his poem that custom is king of all.”[17]
Yet the meaning appears to have altered from Pindar’s original conception of a divine nomos ordained by the gods to a far more fluid and relativistic definition apparent in the earlier statement that
“If one were to order all mankind to choose the best set of rules in the world, each group would, after due consideration, choose its own customs; each group regards its own as being by far the best.”[18]
In other words nomos is a culturally relative term and definitions of normative right and wrong vary from one society to another. There is very little antithesis between nomos and phusis in the histories[19] indeed Herodotus’ environmental determinism would suggest that he sees customs and practices as having arisen from the physical environment and ethnic character or the area so in a sense nomos arises from phusis. He is not alone in such a theory and Plato’s development of a natural law theory suggests a similar conclusion.
“The transition of Plato’s theory of ‘richtiges Recht’ to his ultimate theory of Natural Law is made via the concepts of animal and human phusis.”[20]
What we are presented with in Herodotus is much less any antithesis and more a conception of nomos as being established in varying fashions and being culturally transferable, as we see in the decline of the Persians once they come into the wealth of their conquests and the tendency for Spartans to jump the rails once they go abroad. In effect what we see is not nomos conflicting with phusis, nor nomos existing beside phusis but instead nomos as arising from phusis; part of the established order of things.
To summarize then: we see that the conception of nomos is of considerable importance in the literature of the fifth century and this should come as no surprise given the nature of law or convention as being prescriptive and positivist in setting forth and establishing accepted codes of behavior. There can be no doubt that such a consideration was of considerable importance in the development of the polis and as regards Athenian Democracy and this is reflected in the gradual shift we see from a Pindaric picture of superstitious natural law which favored the strong and the Sophoclean one of legalistic law and order with reference to convention. We also see in Euripides that this ‘traditionalism’ was by no means side-lined but continued to play an important role in the determination of normative practices despite of or perhaps because of the intellectual movement of sophistry. As regards the overall dialogue it would fair to say that as the identity of the polis became stronger and the state began to play a prominent role in festivals such as the Dionysia and Thesmophoria we see an increasing confidence in man-made law over any pre-existing state of nature, which is to be expected as a civic identity grew and positive freedoms were asserted in the face of the negative freedoms of nature.
Bibliography.
Aristophanes, The Complete Plays, Roche.P, New American Library, 2005
Conacher, D., Euripides and the Sophists, London 1998
Euripides, The Bacchae and Other Plays, Davie.J, Penguin Classics, London, 2005
Euripides, Vol II, Kovacs.D, Loeb Classical Library, HUP, 1995
Guthrie, W., A History of Greek Philosophy III: the Fifth Century Enlightenment, Cambridge 1969;
Havelock,E.A, The Liberal Temper in Greek Politics, London, 1957
Herodotus, Histories, Waterfield. R, OUP, 1998
Kerferd, G., The Sophistic Movement, Cambridge 1981
Maguire. J.P, ‘Plato’s Theory of Natural Law’, Yale Classical Studies X, 1947, 151-78
Pindar, Vol I, Race.W.H, Loeb Classical Library, HUP, 1997
Plato, Complete Works, Cooper.J.M, Hackett Publishing Company, Indianapolis, 1997
Sophocles, Vol I, Lloyd-Jones.H, Loeb Classical Library, HUP, 1997
Thomas, R., Herodotus in Context, Cambridge 2000
Thucydides, The Peloponnesian War, Warner.R, Penguin Classics, 1954
[1] Guthrie, 56-7
[2] fr. 152 S-M
[3] Olympian 1, 35-6
[4] Ibid, 51-2
[5] Pythian 1, 41
[6] Aias, 127ff
[7] Bacchae, 395
[8] Clouds,
[9] Gorgias, 482e
[10] Doug Stanhope on freedom
[11] Thucydides, II.37
[12] Herodotus, VII. 104
[13] Kerferd, 118
[14] Twee I know.
[15] Aias, 1245
[16] Aias, 1343-44
[17] Herodotus, III.38
[18] Ibid, III.38
[19] Thomas, 124
[20] Maguire, 156
notes.