INTRODUCTION
This article is a contribution to the study of law in times of societal breakdown.Footnote 1 Almost by definition, it is particularly hard to decipher what law might be in unsettled times, as the question of who is in charge and how that authority is exercised is what is unsettled. And yet if law is in some way capable of keeping societies together precisely when there is the greatest need for cohesion, then this is a phenomenon worthy of some attention. Our guide to the phenomenon will be the ancient Athenian historian Thucydides, the author of The History of the Peloponnesian War.
There are many reasons for the selection of Thucydides. Thucydides is the author of the most harrowing account of societal—and particularly legal—breakdown in antiquity. Thucydides’ primary account of social breakdown occurs in the city-state (polis) of Corcyra, not Athens, and this despite the freewheeling reputation of the Athenian democracy—then and now. Thucydides was thus a famously keen observer of the surprising collapse of social order in one polis and the equally surprising resilience of social order in another polis, and not just any other, but Athens. The history of Athenian democracy is, among other things, intertwined with our own history.Footnote 2
The import of Thucydides grows as one further considers his place in intellectual history. It has long been common to attribute to Thucydides a form of political realism,Footnote 3 indeed, to view him as the initiator of the school of political realism, and this includes his account of law. In many passages Thucydides portrays the law as merely window dressing, manipulated as the various warring parties saw fit once the ordinary bonds of social control had grown slack, including in democratic Athens. Such passages could be read—and often are—as “merely” a form of pessimism, indicating, for instance, that “power is dangerous and corrupting.”Footnote 4 In contrast, Brian Leiter recently and provocatively reads such passages as pointing to a broad, theoretically sophisticated (if implicit), and unqualifiedly skeptical perspective on law.Footnote 5
Leiter is a scholar of Nietzsche and contemporary American jurisprudence, and in his recent article on Thucydides he connects his two interests. In broad strokes, Leiter's argument proceeds as follows: Nietzsche claims that Thucydides is courageous enough to face the real world—a world that Plato flees from into a moral(izing) fantasy. So, too, maintains Leiter, the contemporary legal philosopher Ronald Dworkin retreats from the real world of law, including the fact that judges often act on deep and often unconscious beliefs not determined by law (or morality), and retreats to a fantasy land in which Herculean judges apply moral principles in hard cases as the law itself commands. Or, as Leiter puts it: “Just as Thucydides shows us the Athenians’ speeches ‘refracted through a lens of honesty,’ so too Realists from Llewellyn to Posner strip away the obfuscating doctrinal rationales judges offer to identify the real nonlegal considerations influencing the decisions.”Footnote 6
I discuss only Thucydides and not the many other difficult authors at play here. I argue that contrary to Leiter's depiction, Thucydides cannot be viewed as the kind of realist who would lend support to a legal realist such as Leiter. This is an important qualification, as Thucydides can certainly be interpreted as a realist,Footnote 7 but not as a realist who, with Leiter, eschews the causal efficacy of moral and political principles. This is because throughout his narrative Thucydides attributes enormous importance to articulated and unarticulated moral and political principles. To be sure, there is skepticism about these principles, but there are also key passages where moral principles are not treated merely as tactical playthings.
Even if this is so, the question becomes whether this exegetical point about Thucydides is more than pedantic. It must be granted that the alternative and, I believe more rigorous reading of Thucydides that I propose here is at most suggestive as to the modern jurisprudential debates that Leiter is more broadly engaged in. Nevertheless, Thucydides represents political actors as sometimes responding to the call of a norm that at least bears a family resemblance to the contemporary legal norm of equity.Footnote 8 That is, at least loosely like Dworkin, Thucydides believes that a careful observer must attend to the details of norms that individuals appeal to in order to understand events. Thucydides’ text itself and those of others contribute to a dialogue about equity, a dialogue with real-world implications. Contrary to Leiter, Dworkin's emphasis on the shared theoretical development of central norms does not seem nonsensical when viewed against the backdrop of Thucydides’ fuller account of equity.Footnote 9
BACKGROUND
As J.G.A. Pocock argues, the notion that the polis—particularly the Athenian democratic polis—was inherently unstable and thus not a suitable model has played a constitutive part in Western political history, including the constitutional history of the United States.Footnote 10 Yet this view of Athens as somehow doomed to fail because of the extraordinary demands it made on its citizens is mistaken. As, for instance, Josiah Ober emphasizes, the Athenian democracy recovered from its loss in the Peloponnesian War (in 404 bc) and was stable and prosperous for many decades after the war.Footnote 11 The extraordinary cultural production of fourth-century Athenian democracy is well known (e.g., Isocrates, Plato, and Aristotle), but the success was also material. The Athenian fisc was restored to its imperial levels (without a restoration of the empire).Footnote 12 Furthermore, Athens was an especially lawful society, and at least in part because of the interaction in Athens between informal norms and formal legal institutions.Footnote 13 Ultimately, the Athenian democracy did not collapse of its own weight (even as it became more inclusive) but was put down by external (Macedonian) forces.
The debate about Thucydides’ relevance to contemporary discussions should take place against the backdrop of Athens's continued success as a political (and cultural) community. I would like to make sure that we remember this success as we proceed, because Leiter's account suggests that Thucydides recounts the brutal end of the Athenian polis at the end of the fifth century. That is, based on the realism that Leiter attributes to Thucydides, the Athenian polis should have collapsed in the space of Thucydides’ narrative because its political factions could not trust each other despite their expressed commitment to political norms requiring forbearance, reciprocity, and grace. Yet the Athenian polis did not collapse—not in Thucydides’ narrative and not afterward—and Thucydides attributes this success in part to the public informal norm of equity, an attribution consistent not only with later ancient theories of law, particularly that of Aristotle, but also with our best current theories of the lawfulness of Athens.Footnote 14
There is also a jurisprudential background we should keep in mind. It is relatively common ground that, at least in contemporary legal systems, the law ordinarily works through what Joseph Raz labels “exclusionary reasons.” That is, law works through secondary reasons that preempt ordinary practical reasoning—you pay your taxes because that is what the law requires and not because, on balance, you are happy with what the government is doing (as you might do in the case of giving to a charity). Ordinary practical reasoning (which includes moral reasoning) engages in a balancing of different reasons, not through preemption.Footnote 15 In exercising practical reasoning, one of course must interrogate the content of the reasons one is balancing.
One might begin to question this consensus on exclusionary reasons and law by turning to the question of troubled times and maintaining that: 1) in troubled times there is primarily practical reasoning, even in law. If one accepted this first step, one might then wonder whether: 2) even in a settled legal system, practical reasoning as balancing does not disappear from the realm of legal reasoning.Footnote 16
I am sympathetic to this abbreviated argument.Footnote 17 Note that recent accounts of law arising endogenously (i.e., not imposed from without) do not eschew practical reasoning. For example, following Gillian Hadfield and Barry Weingast, in order for law to serve as a coordinating device within a community, there must first be a level of convergence between private and public beliefs, as well as “a designated third-party system of specialized public reasoning” as to how to apply public beliefs, “to judge right and wrongful actions.”Footnote 18 At first, this austere system seems rather Razian, because there must be public settled beliefs and, using Hadfield and Weingast's phrase, a “common logic.”Footnote 19 Yet where do these convergent beliefs come from? How are they maintained? How is the common logic to work in extraordinary circumstances? Are all beliefs or logics—or the institutions to maintain them—created equal?
Elsewhere, Douglass North, John Wallis, and Weingast argue that the transition of a traditional society into a more economically and politically dynamic open-access order is tied to very particular beliefs and institutions, including rule of law for elites and the belief in perpetually lived organizations.Footnote 20 There is no necessity that a specific society—or any society—develop such institutions and beliefs, and, interestingly, Athens is identified as one of the societies that only made it to the “doorstep” of becoming an open-access order.Footnote 21 Another example of a belief/strategy that performs well in models and that was well attested in Athens is a belief in what I call “forbearance,” which Gabriel Herman defines formally as a willingness to cooperate with others so long as they cooperate, and to forgive defection, but only two instances of defection.Footnote 22
Within this loosely institutional economics framework, one way to understand Thucydides’ differing accounts of Corcyra and Athens is to claim that it was very hard to ascertain the “quality” of beliefs, the extent of their convergence, and the rigor of the common logic of a polis. How can one know whether even an ostensive commitment to forbearance will be honored in the breach? Thucydides’ Pericles clearly indicates that Athens was special in part because, despite the freedom of the Athenians as to their private lives, the Athenians honored written and unwritten laws and were subject to extraordinary demands as to participation in the polis.Footnote 23 Thus perhaps Thucydides’ text should not have registered surprise at the success of the Athenians in maintaining a certain lawfulness amidst great upheavals.Footnote 24
In contrast, I understand the core of Leiter's distinctive approach to Nietzsche and American legal realism as attacking step 1) above, namely the position that there is primarily practical reasoning in troubled times (a position that makes step 2) irrelevant). This is because whatever practical reasoning may take place during troubled or normal times, Leiter maintains that moral concerns are not effective at shaping political or legal action. And, to be clear, it is not simply the efficacy of abstract moral philosophy that Leiter challenges. As is further developed below, Leiter does not follow Aristotle on the importance of virtues, including the importance of habituation into them, and so even virtuous habits are not generally relevant for practical reasoning. It is regarding this remarkable proposition about the ultimate causal inertness of the virtues that I believe that Leiter, intriguingly, appeals to Thucydides. Contra Leiter, I conclude that Thucydides describes the (surprising) effectiveness of one particular public, nonlegal,Footnote 25 and morality-like norm in one polis long ago at a moment of crisis. This is a limited claim, but Thucydides’ narrative is also suggestive as to the power of norms in unsettled times generally, and even in settled times, even in ordinary legal disputes, even now.
LEITER'S ARGUMENT
Leiter begins his argument with a famous passage from Nietzsche where Nietzcshe claims the following:
My recreation, my preference, my cure from all Platonism has always been Thucydides. Thucydides, and perhaps the Principe of Machiavelli, are related to me closely by their unconditional will not to deceive themselves and not to see reason in reality—not in “reason,” still less in “morality.” . . . For the deplorable embellishment of the Greeks with the colors of the ideal which the “classically educated” carries away with him into life as the reward of his grammar-school drilling there is no more radical cure than Thucydides. One must turn him over line by line and read his hidden thoughts as clearly as his words: there are few thinkers so rich in hidden thoughts. Sophist culture, by which I mean realist culture, attains in him its perfect expression—this invaluable movement in the midst of the morality-and-ideal swindle of the Socratic schools which was then breaking out everywhere. Greek philosophy as the decadence of the Greek instinct; Thucydides as the grand summation, the last manifestation of that stern, hard matter-of-factness instinctive to the older Hellenes. Courage in the face of reality ultimately distinguishes such natures as Thucydides and Plato: Plato is a coward in the face of reality—consequently he flees into the ideal; Thucydides has himself under control—consequently he retains control over things . . . [Nietzsche's ellipses]Footnote 26
The gist of Leiter's interpretation is captured by the following:
Thucydides’ “courage in the face of reality” . . . is on display in his portrayal of the dialogue between the Athenians and the vanquished Melians—a dialogue that one distinguished scholar, W.K.C. Guthrie, has called “the most famous example of amoral realism.”Footnote 27
For Leiter, Thucydides manifests “Realist impatience with the ‘swindle with big words and virtues’” through representing “the Athenians in their dealings with the Melians [as] not moved at all by ‘philanthropic and righteous principles,’ but [as] driven, instead, by selfish and self-aggrandizing concerns, restrained only by the limits of their own power.”Footnote 28 Note here that Leiter, following Nietzsche, is claiming not just that somehow the real motivations here were hidden but that the motivations that could be labeled “moral” were a “swindle” altogether. Or, as Leiter puts it, “Thucydides the Realist views political leaders as essentially motivated by selfish concerns—power, fear, wealth—and as creatures for whom moral considerations are rhetorical window-dressing, rather than a reason for action.”Footnote 29
As for the content and context of the Melian dialogue, for our initial purposes here what is crucial is that Melos was a small island that had remained neutral in the war between Athens and Sparta.Footnote 30 During a truce in the larger war, an Athenian fleet arrived at Melos and demanded that the Melians join the Athenian naval empire. The Melians refused, and, in the ensuing dialogue between “Athenians” and “Melians,” the Melians make several appeals to traditional values, such as epieikeia. The Melians make this appeal right at the start of the dialogue;Footnote 31epieikeia is traditionally translated in legal contexts as “equity” but is also often translated as “lenity” or “mercy.” Footnote 32 The Athenians respond to the Melians that “the strong do what they can and the weak suffer what they must.”Footnote 33 The peace/neutrality (hesuchia) that the Melians seek to maintain is not an option.Footnote 34 When the Melians persist in seeking epieikeia and do not submit to the Athenians, they are besieged and eventually surrender: the Athenians “put to death all the grown men . . . sold the women and children for slaves, and subsequently sent out five hundred colonists and settled the place themselves.”Footnote 35 The Melians have paid a terrible price for believing in the swindle of noble-sounding words.
According to Leiter, realist jurisprudents “strip away the obfuscating doctrinal rationales judges offer to identify the real non-legal considerations influencing the decisions,”Footnote 36 just as Thucydides does for contemporary great power politics. As Nietzsche targets Plato, Leiter targets Dworkin for taking nonsense seriously. Specifically, Leiter reconstructs the heart of Dworkin's argument as follows:
If judges invoke moral and political principles in deciding hard cases, then we must view those principles as legally binding on them, and construct a theory of law that shows it to be so. Nonsense jurisprudence treats the judicial “swindle of big words and virtues” (to borrow Nietzsche's provocative phrase) as not a swindle, but a faithful report of the essence of legal reasoning, and thus the central data point to which any theory of law and adjudication must answer.”Footnote 37
The particular structure of Leiter's unique perspective on legal realism must be emphasized. A certain kind of legal realist might claim that dicta about a judge's rationale, including about morality, is precisely what is revealing—in contrast to the judge's appeal to traditional legal doctrine. Yet Leiter discounts both doctrine and dicta if those dicta involve moral and political principles. Indeed, as we see below, Leiter discounts moral principles entirely, even if not expressed. The Melians are not doomed because they naively believed in surface rhetoric but because they believed that moral reasons could ever motivate Athenian action (or nonaction).
INITIAL CRITIQUE
The first step toward seeing the limitations of Leiter's reading is to note the format of the Melian dialogue; it is literally written as a dialogue between two collectivities: Athenians and Melians.Footnote 38 There is no other dialogue in Thucydides’ History; this one dialogue—a typical feature of the genre of contemporary Athenian tragedy—features the Athenians speaking like the tyrants at the beginning of an Athenian tragedy—think Creon or Pentheus.Footnote 39 Alternatively, the Athenians are speaking the way a non-Greek despot, paradigmatically the king of Persia, spoke to the Greeks, particularly the Athenians, at the time of the Persian Wars.Footnote 40 And, indeed, the next event narrated is the great Sicilian Expedition; the Athenians launch an invasion of an even bigger island that they are not at war with. This hubristic assault does not go well, and the Athenians end up in need of the kindness they denied the Melians (which they do not get). To the extent, then, that the supposedly realist speech of the Athenians is supposed to be a guide to action, it is quite a treacherous one.
Thus the destruction of the Melians is not the last word in Thucydides’ text. Though the Athenians did not listen to the moral discourse of the Melians, the text indicates strongly that they should have, that it is not softheaded to consider moral principles even in high-stakes international affairs.Footnote 41
Thucydides’ narrative is full of warnings about the danger of acting as a political realist if that means simply eschewing moral reasoning, as the narrative of the Athenians at Melos and Sicily demonstrates—hence the number of commentators who do not view Thucydides as a political realist.Footnote 42 Here is a less famous example of this dynamic, that of the Thebans at the very beginning of the war.Footnote 43 Thucydides, in his own voice, tells us that the war between Athens and Sparta was in some sense inevitable.Footnote 44 He tells us, as well, that the Thebans “foresaw” (pro-idein) the coming war and so they decided to steal a march on an old enemy—the neighboring city of Plataea. Accordingly, the Thebans sent an army into Plataea, but not a very big one. Presumably this was because war in fact had not been declared. However, entering into Plataea was an act of war, and the Plataeans opted to take advantage of the small number of Thebans to slaughter almost all of the invaders. Realistic foresight as to politics is an ambiguous thing. With no foresight at all, the Thebans would not have invaded, and with more foresight they might have sent a larger force, but perhaps with more foresight still, they might also have done nothing, realizing that war was in part inevitable because of actions like the one they were contemplating.Footnote 45
It could perhaps be maintained that Thucydides is still describing events as a realist in Leiter's sense, even if he has qualms about acting as a realist. Yet the normative-descriptive distinction breaks down as the narrative progresses. The Athenians accept the self-description of as realists and supposedly act as such, as do the Thebans, but this supposedly clearheaded description of the world they operate in is not descriptively accurate, and they suffer accordingly. Now, one can maintain that Thucydides is still a realist as to descriptions in some more complicated way, say by accepting the possibility of self-fulfilling prophecies and the power of rhetoric, including moral rhetoric. As this kind of realist—call him a “tragic realist”—Thucydides might express regret that thoughtful moral thinking is not more effective at guiding action in a world characterized by uncertainty and strife.Footnote 46 Yet this realist Thucydides is no simple ally to Leiter.Footnote 47 After all, unlike Leiter, such a Thucydides preserves the possibility of moral and political principles being rather important, including such principles when articulated in public speech. And this should come as no surprise, as speeches are central to Thucydides’ narrative and to Greek life,Footnote 48 often in extremely complicated ways. For example, the speeches are generally in polemical tension with one another and sometimes with the facts that Thucydides narrates.Footnote 49
In short, the position Leiter ascribes to Thucydides is one-sided on Thucydides’ own terms; Leiter's position is (loosely) consistent with that of the Athenians in the Melian dialogue and also the one articulated in other famous passages, such as the speech of the Athenian politician Cleon in the Mytilenian debate. There, Cleon argues for the destruction of a city, Mytilene, which has revolted from the Athenian Empire. According to Cleon, this would be an exemplary (and just) punishment.Footnote 50 In the case of Cleon, the counter within the text is explicit, as Thucydides presents Cleon's speech as one speech in a debate with another politician, Diodotus. At least to some extent, Diodotus wins the debate, and the Athenians show (some) mercy (epieikeia) to the Mytilenians.Footnote 51 Diodotus, notoriously, though he argues for epieikeia, denies that he is doing so and indeed is arguably more of a realist than Cleon (who still appeals to justice).
This opens up a vast interpretive question. Perhaps Diodotus also shares Cleon's “realism,” and so this debate actually provides support for Leiter's reading, because here is a debate revealing that both sides care only about self-interest and only one side even bothers with the swindle of morality. Or perhaps the debate does not support Leiter because the clever victory of Diodotus suggests that one can be most realistic of all by seemingly appealing to amoral realism when really appealing to traditional moral concerns.Footnote 52 Or perhaps the entire debate reflects the degradation of political discourse after the Olympian example of Pericles leaves the scene; unlike Diodotus, Pericles seemed able to engage in clear-eyed realpolitik and to articulate a greater—and deeper—vision for the Athenian polis, and a vision that actually motivates action.Footnote 53 For our purposes, it does not matter who is right—indeed it is plausible to maintain that Thucydides’ accomplishment is in setting up the possibility of the debate.Footnote 54 Because there is the possibility, perhaps the necessity, of a debate about political realism that emerges from Thucydides’ text, he cannot be drafted so readily to one side.
Since Thucydides has constructed a narrative in which even the most realist speeches problematize political realism going forward (and backward), then whither Leiter's crisp distinction between realism(s) and moralism(s)? And where in Thucydides do we get a stable distinction between accurately describing events and opining about them? According to Leiter, Thucydides ultimately condemns the moral reasoning of the Melians as dangerously inefficacious. Indeed, the obstinate position of the Melians does seem problematic, but so, too, is the seemingly amoral position of the Athenians. If it thus makes sense to read both speeches carefully, then why should it be illegitimate for a contemporary legal theorist like Dworkin to read judicial decisions for their underlying principles? Again, Thucydides gives us both the Melian dialogue and the Mytilenian debate—he did not write a monograph.
RESPONSES AND REFINEMENTS
Leiter's version of legal realism is particularly dismissive of considering articulated moral reasoning; such reasoning is to be not just assessed skeptically but dismissed. Thus Leiter's breezy assimilation of Thucydides to his particular form of legal realism is undermined if Thucydides is not even a straightforward political realist. Thucydides does not summarily dismiss moral principles. But maybe there is another, stronger way to approach Leiter's position.
One refinement might be to read Leiter as critiquing a Dworkinian reading practice, in contrast to the reading practice of Thucydides as such practice is instantiated in the structure of his narrative. For example, on Leiter's interpretation, Thucydides reads the speech of the Melians with more subtlety than Dworkin reads contemporary judicial appellate opinions. And Leiter does object to Dworkin's reading practice.Footnote 55 Furthermore, Dworkin does take the fact that judges seem to disagree on legal theory on the surface as an important piece of data that a theory of law should be able to explain.Footnote 56 Yet Dworkin does not claim that either what judges do or how we should understand what judges do is simple.Footnote 57 Nevertheless, it could still be that the kind of critique to which Thucydides subjects all of the speeches in his narrative, even those of Pericles, suggests that a Thucydidean reading practice of contemporary legal documents would more resemble that of Leiter versus that of Dworkin. Such small differences matter,Footnote 58 and I think Leiter is often persuasive in his attacks on the details of Dworkin's reading practice.
We could therefore summarize my critique of Leiter so far as follows: Leiter remains at the surface of Thucydides’ text in the same way Leiter argues that Dworkin remains at the surface of contemporary legal opinions. Furthermore, Thucydides’ sophisticated interpretation of public discourse does take the so-called moral swindle seriously. Why could a refined reading practice inspired by Thucydides not take contemporary judicial opinions seriously?
If we look to his other writings, we find that Leiter does offer a specific argument as to what precisely is missing from even a reformed Dworkinian reading practice—or any reading practice that looks to moral principles. The problem, according to Leiter, is that moral or political arguments, expressed or unexpressed, are a swindle; they are virtually never relevant in causing legal or political behavior.Footnote 59 Leiter applies this line of attack directly to Dworkin: “the construction of a theory that is descriptively adequate in Dworkin's sense is an idle exercise: judges decide for other reasons—their response to the facts—and not because of the legal reasons that fill their opinions.”Footnote 60
The inefficacy of such legal reasons/moral arguments is the lesson in moral psychology that Leiter draws from Nietzsche. Leiter (with Joshua Knobe) thus contrasts the moral psychology of Nietzsche with that of Aristotle and argues that for a Nietzschean, “[w]hat is decisive is not upbringing, particular habits [contra Aristotle], or conscious choice [contra Kant]; what matters most are heritable psychological or physical traits.”Footnote 61 The issue is not whether habits or choice matter to some extent, but how important they are. Specifically, according to Leiter, habits and choice “largely serve as post hoc justifications for behaviors that would have been performed either way.” For a Leiterian legal realist, what one ought to do is not only to discount certain accounts people give of their actions (as a conventional political or legal realist might do) but, for the most part, to discount a certain theory of human actions (no matter what account people may give). The Aristotelian tradition of habituation into certain reasoned discourses is one of many swindles that is to be eschewed.Footnote 62
Placing Leiter's argument about Thucydides into the larger context of Leiter's own writings restores some of the sharp lines to the contrast that Leiter wants to draw between Thucydides and Plato/Dworkin.Footnote 63 In deploying Thucydides as a cudgel against Dworkin, Leiter essentially argues that Thucydides is a Nietzschean (in Leiter's sense) as to moral psychology.Footnote 64 According to Leiter's Nietzsche, it is the type of person one is that is usually decisive in explaining action—in contrast to training or discourse. Leiter explains this point with a striking illustration:
Think of some seeds from a tomato plant. No amount of environmental input will yield an apple tree from those seeds, yet the “environment” (the amount of water, sun, pests, etc.) will affect which of the trajectories possible for a tomato plant . . . will be realized. Yet still the fact is that the type tomato is the only possible outcome.Footnote 65
If one resolutely ignores that a tomato plant will yield tomatoes because one does not think it ought to—or worse, because one believes the tomato plant when it says it is growing apples this year, then one is signing up for confusion.Footnote 66 I think it is fair to say that Leiter would (and does) explicitly import his reading of Nietzsche into his argument about Thucydides and Dworkin; the danger with the moralized perspective Leiter attributes to Dworkin (in contrast to Thucydides) is that this swindle is most seductive to the most thoughtful.Footnote 67 Most judges decide cases in ways that legal realists would predict. Lawyers committed to realist thinking will do better, and those most committed to the legal enterprise as a moral enterprise will be confused, or worse. It can be worse than disappointing to appeal over and over to moral values expecting that they might win the day—as the Melians demonstrate.
This is why Leiter has no problem with the consensus view that the Melian dialogue, especially conjoined with the Sicilian Expedition, may well contain a “moral,” namely that naked aggression is a dangerous enterprise.Footnote 68 But for Leiter this concession is consistent with also claiming that the Athenians were driven by the ambition that characterized who they were. Put another way, Leiter observes the normative discomfort that Thucydides’ text signals, but what is crucial for Leiter is that Thucydides describes Athenians acting in a manner wholly indifferent to the reasoning adduced by the Melians. And in so doing, the Athenians appear to be acting like Athenians and the Melians like Melians.Footnote 69
A DEEPER RESPONSE: THE SURPRISING APPEAL TO EPIEIKEIA AT THE ANACEUM
The problem with this revised argument is that Thucydides is far more of an “Aristotelian” than a “Nietzschean,” both in Leiter's sense. In particular, Thucydides’ text manifests the import of sophisticated moral thinking (and habituation) in motivating and guiding very significant events in the Athenian polis, a polis that, we should remember, would continue to thrive for decades even after it lost the Peloponnesian War.Footnote 70
Defining morality, much less finding it in Thucydides, strikes me as problematic,Footnote 71 and so I am focusing on the norm embodied by epieikeia.Footnote 72 We consider the role of epieikeia in Thucydides and in Athens more generally below, but note that as a live norm in an ancient society, it will have to suffice to sketch its broad outlines. Remembering the issue vis-à-vis Leiter, our question is whether epieikeia is the kind of norm that should, if Thucydides were a realist in Leiter's sense, be represented as no more than a causally inert swindle. Remembering our jurisprudential framing, we should consider whether the imperative to demonstrate epieikeia in the context of political and legal decisions is tantamount to requiring the regular exercise of practical reason.
Epieikeia is an important term in Thucydides’ narrative. It is epieikeia in discussion that the Melians request from the Athenians, epieikeia that they do not receive, and epieikeia the Athenians seem at some point to have made an imperial policy to withholdFootnote 73—even though, in an earlier self-manifestation, the Athenians saw their empire as manifesting epieikeia. Note that, at least in the international context of Melos, epieikeia would seem to mean something more than just lenity or mercy; the Melians argue that the Athenians should not preemptively decide that war is inevitable and that every polis must choose sides. The Melians would like to be left alone to remain neutral; they do not require lenity, having done nothing wrong.
Thucydides’ use of epieikeia is not idiosyncratic.Footnote 74 Other major contemporary figures associate epieikeia with Athens,Footnote 75 describe epieikeia as a moderating complement to dike [justice],Footnote 76 and understand it as somehow central to a thriving polis.Footnote 77 This understanding of epieikeia continues into the fourth century, including in the surviving works of Athenian orators and most especially in the theorizing of Aristotle.Footnote 78
Of the many related aspects of epieikeia we find in our sources, I wish to focus on epieikeia as a norm that counsels risky forbearance in the first instance.Footnote 79 Without question the Athenians do not grant the Melians epieikeia in this sense, but they do grant it to their fellow citizens at the most important moment of all, the moment when their polis is teetering on the brink of civil war. For Aristotle—presumably echoing the common sense of the time—the polis was the self-evident best place for human flourishing. It was accordingly equally self-evident that dissolution of the polis, civil war (stasis), was the worst possible calamity,Footnote 80 and thus epieikeia is a particularly important norm. In order to understand fully the surprising and crucial Athenian deployment of epieikeia, we need a little additional context.Footnote 81
The key account of civil war is Thucydides’ account of it in the city of Corcyra in 427 bc. Thucydides describes both the phenomenon of this civil war itself as well as the series of events that led to civil war. The description of the phenomenon has rightly been celebrated for more than two millennia; here is a key excerpt:
Words had to change their ordinary meaning and to take that which was now given them. Reckless audacity came to be considered the courage of a loyal supporter. . . . Moderation was held to be a cloak for unmanliness; ability to see all sides of a question incapacity to act on any. . . . To succeed in a plot was to have a shrewd head, to divine a plot still shrewder. . . . The fair proposals of an adversary were met with jealous precautions by the stronger of the two, and not with a generous confidence. . . . Oaths of reconciliation, being only offered on either side to meet an immediate difficulty, only held good so long as no other weapon was at hand.Footnote 82
Note that this passage connects the collapse of the polis with the collapse of the community's ability to use language to mediate disputes. In a sense, every political dialogue within Corcyra resembled the Melian dialogue. Note as well that civil dissolution in Corcyra was marked not only by an unwillingness to hold back in the face of a provocation, even when one was stronger, but by a positive impulse to strike first (and strike hard).
What led to this paradigmatic civil war? There were internal and external elements. The two major political factions in the city, the democrats and the oligarchs, called in external allies—namely, the Spartans and the Athenians. An Athenian general (Eurymedon) in particular did nothing as his democratic Corcyrean allies took a terrible revenge on their oligarchic enemies.Footnote 83 At the same time, the Corcyreans took giant steps toward civil war on their own. Atypical in its mundanity and prolixity, Thucydides’ account of the civil war includes a series of lawsuits between the two rival political parties (the democrats and the oligarchs).Footnote 84 Eventually one side won a crippling monetary settlement on narrow legal grounds and then refused to compromise, thus encouraging the losers to resort to violence.Footnote 85 In Corcyra, the law not only failed to provide a space for compromise but became another venue for combat.
Thucydides emphasizes that Corcyra provided a precedent for further violence. That is, each side in every other polis believed that it had to strike quickly or be destroyed, as the slower-moving parties had been destroyed at Corcyra. As a result, Thucydides tells us in his own voice, “to euēthes [the ‘ancient simplicity’], which is the largest part of to gennaion [nobility] was laughed down; it vanished.”Footnote 86 Accordingly, Jonathan Price argues persuasively that a central feature of Thucydidean civil war is a collapse of a shared political discourse, of a common logic in Hadfield and Weingast's sense.Footnote 87 The old, more trusting, values either are distorted or disappear completely. The unraveling of Corcyra suggests a realist reading of Thucydides not unlike Leiter's. In civil war Corcyra, belief in expressions of moral values appears dangerously naïve.
Thucydides heavily foreshadows that Athens above all will reap what it has sown in stoking civil war within Corcyra. This would be “blowback” in contemporary jargon, much like what happens to the Athenians in Sicily after their attack on Melos. Thucydides tells us that Athens pursued a policy of allying with democratic parties and hence encouraged communities to polarize.Footnote 88 Why should such polarization not affect Athens herself? And there are narrative hints of blowback. For instance, when Thucydides talks about political factions in Corcyra losing any sense of allegiance to family or the common good, he uses a technical term for “political party” (hetairoi),Footnote 89 which almost certainly describes Athens more accurately than Corcyra. Further, immediately after his recounting of the Corcyrean civil war, Thucydides tells us of minor Athenian operations in Sicily, a narrative choice of some significance given the catastrophe that would befall the Athenians in Sicily in the coming years.Footnote 90 The Athenians may see Corcyra as a strategic stepping stone to Sicily, but perhaps it is also a stepping stone on the path to disaster for the Athenian polis.
And so, about fifteen years after the civil war in Corcyra, after the Athenians deny the Melians epieikeia and after the annihilation of Athens's great expedition to conquer Sicily, we are well positioned to recognize the signs as civil war returns to Athens. Taking advantage of the Sicilian disaster, the oligarchic party in Athens commences a coup by deceiving the Athenian demos.Footnote 91 Facing resistance, the oligarchs are prepared to ally with foreign enemies against their domestic opponents.Footnote 92
And then the democratic party in Athens masses and arms itself. The armed force marches on the oligarchs,Footnote 93 and this looks like the beginning of full-blown civil war. Thucydides, in another unusually prolix passage, tells us that the oligarchic party does something strange. The oligarchs send messengers down to the armed democrats to reason with them at a temple called the Anaceum in order to convince the demos not to begin a full-scale civil war.Footnote 94 In particular, Thucydides tells us that the chosen emissaries talk toFootnote 95 those men of the demos who seem characterized by epieikeia [equity]Footnote 96 in order to persuade [peithein] them to show calm [hesuchia]Footnote 97 and stop the others. This gambit succeeds; there is an agreement to hold an assembly concerning the restoration of concord [homonoia].Footnote 98 Based on Thucydides’ analysis of civil war at Corcyra, these discussions should have been laughed down (or even more cleverly, merely used as a ruse by one side or the other).Footnote 99Epieikeia, a norm central to the culture and frequently appealed to in political discourse, is thus represented as having a vital influence on events.
In the midst of the troubles of 411 bc, the Athenians demonstrated epieikeia in another related context. At the time of the oligarchic coup, the Athenian Navy was on the island of Samos. The navy rejected the new oligarchic order, and Thucydides tells us that several times the sailors were inclined to sail home to Athens restore the democracy by force. At one crucial moment, Alcibiades remonstrated with the Athenians on Samos and prevented the descent into full civil war, which would have been disastrous for the city.Footnote 100 For this, Thucydides credits Alcibiades as having performed a uniquely valuable service to Athens.Footnote 101 At an earlier moment, the Athenian Navy was constrained not by a particular leader but by those who called themselves moderate.Footnote 102
It could be maintained that the collapse of Athenian epieikeia was yet to come—perhaps Thucydides was foreshadowing not the civil disturbances of 411 bc in the Corcyrean narrative but the later violence of 403 bc,Footnote 103 namely, the events immediately after Athens's final defeat in the Peloponnesian War. Without doubt, the oligarchy set up by the victorious Spartans (the so-called Thirty Tyrants) was violent, but this regime was also short-lived, and no bloody reprisals followed the restoration of democracy. Indeed, the Athenians instituted an amnesty that protected most citizens who would otherwise have had to fear reprisals for what they had done under the Thirty. This brief account understates the role of discourse—particularly legal discourse—in bringing peace to Athens. There were many lawsuits that, despite the amnesty, did touch on the violent events that took place under the Thirty, and yet, unlike the lawsuits at Corcyra, these suits did not reignite civil war. The Athenian legal system was able to give some hearing to these complaints without undermining the amnesty.Footnote 104
In sum, epieikeia is described here in Thucydides as, at least in part, taking a risk and accepting a possible loss and certainly not striking out preemptively.Footnote 105 This epieikeia as forbearance is indeed a laughable posture at moments of great stress if it is shown by only one side (as in Corcyra), but it is also just then that it is most important that someone manifest epieikeia so that the other side can reciprocate.
Epieikeia, as forbearance, thus contributes to internal peace in Athens amidst extreme upheavals.Footnote 106 Though the Athenians deny it to the Melians, they grant it to their fellow citizens, fulfilling their vision of themselves. Epieikeia in Thucydides is a virtue sometimes referred to explicitly, alive in the culture, easy to mock, and yet vitally important to saving the polis. Put roughly in Hadfield and Weingast's terminology, it is a norm upon which there has been a significant convergence of belief and about which the Athenians have a common logic that allows the norm to be applied horizontally—that is, without direction from above. Furthermore, following Herman, it is not just any classificatory norm but one particularly conducive to communal success.
The role of epieikeia in Thucydides’ account of Athens is not conclusive proof that Thucydides believes that ethical training can be significant in the way Leiter attributes to Aristotle. Nevertheless, I think it highly suggests that whatever kind of realist Thucydides might be, he would not generally discount communal commitments to norms that we would now likely label “moral.”Footnote 107
OBJECTIONS AND A RETURN TO THE JURISPRUDENTIAL FRAMING
Various concerns can be noted and addressed briefly. For one, it could be countered that epieikeia does not seem to have anything to do with law. Even if true, this point primarily indicates that Leiter's initial move between political and legal realism is too quick because he, too, assumes that there is a shared core of realisms. But I do not think this nomenclatural objection is on the mark. First, it would seem odd for individuals sometimes to behave in the public realm with epieikeia but never in connection with law. Indeed, as Jules Coleman recently emphasizes, two thinkers as commonly opposed as Dworkin and Raz both consider the nature of law within the larger context of political philosophy.Footnote 108
Furthermore, the connection between law and epieikeia is long and deep. There was a tradition before Thucydides and long after—especially in Aristotle—connecting the virtue of epieikeia with law, a tradition that we have seen Thucydides participate in. Without belaboring this point, Aristotle in particular expounds upon epieikeia as the virtue that allows an individual to do justice even when the written law does not provide guidance (or is a positive hindrance); this perfection of justice is to be done by taking a broader and longer perspective.Footnote 109 This, too, would seem to be exactly what was lost at Corcyra and preserved in Athens. Remember that in Corcyra Thucydides goes out of his way to trace the descent into civil war through politically motivated lawsuits in which the winning side insists on total victory on narrow, formalistic grounds. The Athenians specifically did not follow the Corcyrean precedent when they averted civil war in 411 and then when they established the Great Amnesty in 403, and as noted above, the Athenian democracy continued to thrive for decades after 403.
It could also be objected that epieikeia is an ancient virtue with little connection to modern law, much less modern jurisprudence. This concern can also be dismissed. Understanding epieikeia in our own context is no doubt different, but it is hard to see why, in some form, it should have no place at all. I would particularly point to the work of Leslie Green and his emphasis on “civility” and the perils of legalism, which seem to me to be drawing out the contours of a modern notion of epieikeia.Footnote 110
We can also reply to this concern by returning to our jurisprudential framing. Thucydides’ Athenians explicitly hear the call of a shared norm. They do so at a moment when Thucydides’ narrative leads us to expect that this appeal will fail. Indeed, Athenian compliance with this norm at moments of stress is not anomalous, both within Thucydides’ narrative (e.g., the events at Samos) and without (e.g., the Great Amnesty of 403). This norm is also consistent with both how Thucydides’ Athenians portray themselves to themselves in his narrative (e.g., Pericles’ Funeral Oration) and how the Athenians portray themselves to themselves in contemporary courtroom speeches. This last piece is key. The Athenians apparently engaged in the same manner of practical reasoning in extraordinary times as they did in ordinary times. The well-known Athenian passion for rhetoric has therefore left us a collection of literary texts, including that of Thucydides, that are a testament to the workings of their extraordinarily successful common logic.Footnote 111 We should not understand the Athenian training in epieikeia as merely a product of their service in the Assembly or on mass juries (i.e., venues for set-piece speeches); Athenian citizens would have been required to perform a myriad of other services for the polis (e.g., serving on the Council which set the agenda for the Assembly) that would have required epieikeia. All of this would seem consistent with David Luban's contention that practical reason ought never to be turned off.Footnote 112
CONCLUSION
A close reader of Thucydides—which he selects for by means of, for example, his difficult styleFootnote 113—would note that the Athenians are inherently quick to act and that they, like all Greeks, learned the lesson of Corcyra, namely to strike first and to use any available ruse. The Athenians apply this lesson in Melos. Reading the text in this way, we might well arrive at the conclusion, with Leiter, that Thucydides has stripped away obfuscating rationales and revealed that Athenian behavior is explained by who they are, and who they are is a polis with a lust for power. That this polis came to grief in Sicily is actually confirmation that the nature of the Athenians and their concomitant calculation of their self-interest are the key factors one needs to understand events. Moral principles are mere window dressing.
Such a reader might well have predicted—as Thucydides’ text foreshadows—that like the Corcyreans, the Athenians, having fallen into internal conflict, will destroy themselves through their confidence that no one can be constrained by the norm of forbearance they all ostensibly share. This prediction turns out to be false, suggesting that habituation into shared norms can be quite important, as can be communal deliberation on the basis of such norms. Ultimately, Leiter does not read Thucydides closely enough.
Returning to jurisprudence, Thucydides’ narrative suggests that practical reason, which involves the balancing of reasons, including moral reasons, can be extremely important in troubled times. More speculatively, Thucydides suggests that the similarity between the successful use of practical reason in unsettled times and in ordinary times is not anomalous. The Athenians succeeded in using practical reason in 411 bc and 403 bc because that is always how they reasoned. If a habit of practical reasoning turned out to be so important in Athens, at least as recounted by so skeptical an observer as Thucydides, then why should we discount the importance of such habits in our contemporary legal culture?
Put another way, and paraphrasing Aristotle, habituation into the virtue of showing grace in ordinary times, which grace requires taking a dangerous initiative in showing kindness, is what saves the polis in extraordinary times. Appropriately, the polis is defined as the community in which citizens exercise graceful reciprocity, and it is this reciprocal justice, according to Aristotle, that saves the polis.Footnote 114 Thucydides dramatizes the import of such reciprocal grace in his narrative about the events at the Anaceum in 411 bc; whether such a virtue is comprehensible, desirable, or detectable in our legal context is another matter, but a matter that has not been closed.
