Part One: The Duplicity of the Law

Plato's Minos is not a difficult dialogue to summarize. It begins (when or where we do not know) when Socrates asks an unidentified comrade (he seems to be an Athenian—315b6–d5) what law is. The comrade tries to answer that law, nomos, is the things held or believed, ta nomizomena—he takes advantage of the fact that both the noun, nomos, and the participle, nomizomena, stem from the verb nomizein—to believe, not in the sense of an inner belief, but in the sense of holding something to be the case. Socrates then tells him he wants not examples of laws but the common thread that makes them all law—in the language made famous by Plato, their eidos, their form or idea.Footnote ¹ Socrates gradually moves the comrade to accept a rather strange definition—that “law wants to be the finding out of what is.”Footnote ² The comrade then asks why, if this were true, and all law were the same, there would be so many different laws in different places and different times. Socrates responds that this is because human beings err in various ways with regard to what law isFootnote ³ and then exemplifies this sort of error by introducing a powerful and dangerous Athenian mistake: under the influence of the tragic poets, they have been induced to blame Minos of Crete, perhaps the greatest of all lawgivers. The dialogue ends with this example, from which it also receives its name. So far, so simple. However, things are not what they seem; a closer look reveals difficulties galore.

What is perhaps the most startling of these difficulties comes to light in Socrates's response to the comrade's first definition of nomos as ta nomizomena.

Now, each of the first terms of these examples is double in meaning. Logos means what we say but also the faculty by which we say it. Opsis means sight in the sense of what we see and also the faculty by means of which we see—as is also the case in English, and akoē, hearing, is either an object of sensation or a faculty. On one reading, then, Socrates proposes a nondistinction—logos and ta legomena are, in fact, not so easy to distinguish. Accordingly, it seems clear that Socrates must wish the comrade to take him in the second sense— i.e., where logos, sight, and hearing are understood as faculties. This, however, seems a very strange claim, for it would mean that we are to take nomos to be something in us in the way the senses are in us—a faculty of nomizein by which we hold, believe, or regard things as lawful.Footnote ⁵ And Socrates's subsequent definition would identify this faculty as what “wants to be the finding out of what is.” At this point our question should be simple. What on earth could this mean?

Let us return to the beginning of the dialogue—the abrupt, if ambiguous, question: What is law?Footnote ⁶ Socrates's precise question in the first sentence of the Minos is, “The law for [or perhaps, in] us what is it?” It is not altogether clear what he means. The phrase hēmin nomos might mean “one of our laws” (e.g., the marriage law), or “our law generally” (i.e., Athenian law), or “law according to us,” or, perhaps most peculiarly, “law in us.”Footnote ⁷ And this is all before we even consider the ambiguity of the term nomos, which may mean law understood as custom (i.e., what influences us behind our backs and without our knowing) or law as explicit (posited law)—not to mention the other meaning of nomos, song. So, at the very least, Socrates could mean “What are our traditional ways?” or he could mean “What is the body of legislation we have laid down for ourselves?” Is he asking “What makes us?” or “What do we make?” (Are we melancholy because we hear a sad song, or do we listen to a sad song because we are melancholy?)

The various meanings make for an extraordinarily complex array of possibilities. Still, perhaps fundamental to all of them is the distinction between law as something external to us, however much it rules us (say, traffic laws), and law as in some way in us. The comrade's response, “And what sort of laws are you asking about?” points to the former (Socrates had asked about law in the singular; the comrade makes it plural); Socrates seems intent on getting at the latter—he wishes to understand law as what constitutes, or at least identifies, a “we,” so that “What is law?” is a way of asking after the universal principle that particularizes a people—what it is that ensures that we will all bow down to something. Socrates's initial Ho nomos hēmin ti estin might then be understood to ask, “What is the law that unifies us and makes us a recognizable ‘we’?”Footnote ⁸ This would be connected to his strategic use of the particle pou in the immediate sequel. Idiomatically, pou means on the one hand “surely” or “I suppose,” but more literally either “somewhere” or “anywhere”—both indicating a place that, while in principle determinate, remains undetermined. Socrates means to ask the comrade how nomos identifies a people—a “we”—with a place or location. What is it that makes us all locals?

By asking what sort of laws Socrates has in mind the comrade opens the door for what seems the standard Socratic move. Socrates asks, “Is it [possible] that law differs from law with respect to this very thing, in being law?” (313a3–4). Now, the comrade is clearly meant to think the question rhetorical, for with respect to being law, how could one law possibly differ from another? But perhaps the question is serious and means to call our attention to the fact that nomos, like language, seems always to appear in a particular form—it is idiomatic. If the multiplicity of laws is not an accidental feature of the existence of law, Babel would be our natural state. And so, in this way law would differ from law precisely with respect to its being law (that the power of a universally binding claim should show up not in a universal form but in a form that is particular and contingent is another of the puzzles of nomos). Law would be like language—curiously the zōon logikon, the animal with speech, never speaks speech but always Hebrew or Persian, Latin or Greek, just as the zōon politikon, the political animal, never obeys law but always Halakha or Vendidad, the Twelve Tables or the Laws of Solon—particular laws often at odds about practices as fundamental as how we treat dead bodies.

Here, Socrates only hints at this problem and quickly moves on to correct the comrade by initiating an imagined dialogue (it is worth noting that dialogue too constitutes a “we”):

The example does not seem arbitrary.Footnote ⁹ On the one hand, gold is a natural object; on the other hand, it is valued and used as a medium of exchange. As money or currency (nomisma) gold is what it is because of what it is taken to be, because it is something we hold or believe (nomizein) to be precious. Gold is thus conventional—as valued, it is a pragma (a thing that is a thing because of what we do, a thing for us) and not an on (a being on its own, or simply). This conventionality of gold is unusual, however, in being so widespread as to be effectually hidden from us. Unlike the dollar, gold's value doesn't seem local.

If, as Socrates claims (at 313b12–13), law, like gold, “differs in no way pou from law, but all are the same” (that is, if law always makes its particular claim as though it were universal), it is reasonable to remark on this extraordinary confidence of the law. The comrade's first “definition” of law is therefore not as superficial as it first seems. Law, nomos, is nothing other than the things that are held or believed—ta nomizomena. We do not believe things because of the law; rather the law is what it is because it is believed.

This is where Socrates introduces by way of a series of examples the possibility that law might be a faculty internal to us, a move that seems to point to the real significance of the dative pronoun, hēmin, in the initial question of the dialogue, where Socrates seems finally to be asking what the law is in us.Footnote ¹⁰ If the law constitutes us as a “we” and as therefore belonging pou, to a place, then the faculty of nomos would be something like our capacity to be in a place.Footnote ¹¹ That things seem (dokein) to us (hēmin), to you (soi), and to me (moi) (all of these dative pronouns appear on the first page) is connected to the fact that we have a certain opinion or faculty of opinion—i.e., doxa, which is related to the verb to seem—that in turn gives rise to a particular opinion, a dogma. We are beings to whom things seem and therefore in whom this seeming occurs.

In response to this series of examples comparing law to faculties of sensation, the comrade retracts his first definition. Socrates then creates a hypothetical dialogue about what the things just now said (legomena) mean (legein). So the meaning of these things said wasn't clear? Apparently there is something not altogether transparent in the way these things show themselves, something that makes questioning possible. Like laws, then, things said seem at first to have a straightforward objective reality (rather like the opening sentence of the Minos), but this reality is compromised by the fact that they are always what they are for someone. Even if inexplicitly, things said always involve a dative pronoun—we would say they involve an indirect object. Accordingly, legein, to speak, is always already dialegesthai, to converse. As necessarily dialogic, speech always implies a “we.”Footnote ¹² Socrates makes this clear first in his definition of sight as “sensation that makes pragmata clear through the eyes” (314a2–3) and then in turn in his definitions of the other senses. Not beings simply, but things insofar as they concern us are the objects of sight.Footnote ¹³ Now, if all sensation is not of beings but of pragmata, and if nomos as custom or convention should turn out to be what makes beings into pragmata, then, although it certainly seems odd at first, nomos would be not only like the sense faculties, it would be the faculty that underlies and makes possible all sensation. Nomos as faculty is what provides us with that distance from the world that allows us to opine about it. That human beings are the rational or speaking animals would then be in its way identical to their being political animals.Footnote ¹⁴ Human beings as universally local are divided by place into we's. This proves to mean that it is not altogether true that fire burns the same in Greece as in Persia, for what we sense is informed by what we expect to sense.Footnote ¹⁵

What this might mean begins to emerge in the sequel. Socrates asserts that nomos is the faculty by which nomizomena, things held or believed, are held or believed. Following the models of sight and hearing, he then suggests that nomos too is a kind of perception or clarifying and asks, just as in the case of sight the clarification is through the eyes and in the case of hearing, the ears, through what the clarification of law takes place. Had he stopped here, Socrates would seem to have asked the comrade to identify an organ of the body through which the “sense” of law operates. But, not waiting for an answer, he rushes ahead to elaborate his question:

What could it possibly mean that art is like the eyes in being that “through which” a clarification is effected? What might it mean that “art is the finding somewhere in us of the pragmata”? If we take Socrates's example of medicine seriously, he must mean that art is not to be understood as a body of knowledge, something that might be found in books, but rather a certain disposition of our being, something like an ability to play the piano.Footnote ¹⁶ Could nomos be the power in us to acquire such powers?

In answer to Socrates's question the comrade now concludes that law must be the opinions (dogmata) and decreesFootnote ¹⁷ of the city—what seems to the city—and then settles on the definition of law as a dogma of the city. Now, dogmata, like legomena, can only mean the product of an activity and not the faculty of producing such a product.Footnote ¹⁸ The comrade always seems to think of law as primarily something we produce and not something that produces us. Accordingly, Socrates immediately, and without comment, edits this definition and dubs nomos “political doxa.” The word doxa reintroduces doubleness to nomos, for it too may mean the product, what seems to us, or the faculty responsible for its seeming so.Footnote ¹⁹

The refutation of the definition of law as political doxa (314c5–e5) seems once again typically Socratic. In the same way that wisdom makes some wise and justice makes some just, law makes some lawful. The opposites, in turn, make the opposites—it is lawlessness, for instance, that makes some lawless. Now, in addition, the lawful are just and the lawless unjust. And both justice and the law are most beautiful/noble, while injustice and lawlessness are most ugly/shameful. The one (presumably Socrates means justice and law, but he never specifies them) preserves cities while the other destroys them. But clearly then justice and law are things noble and beautiful to be pursued as good. Now, as not every dogma is goodFootnote ²⁰—we can surely have bad ideas—law, if always good, cannot be simply the dogma of the city.Footnote ²¹

The refutation has a number of peculiarities, but perhaps the most important is the introduction of the word nomimos. It may simply mean lawful, and in this sense we often think of it as like a virtue—that is, in the sense in which we find lawlessness a vice. But it may also just mean what is customary. In this sense it reflects the fact that the lawful is beautiful and good only when viewed from within the realm of a particular “we” established by the law. In defining the law as political doxa, insofar as the comrade is “speaking beautifully” (314c4), Socrates takes advantage of the fact that he speaks from within a context of nomos. This is what allows him to elicit the conclusion first that the lawful are just (314d1–2) and then that the law is beautiful and good. These conclusions are perfectly reasonable from within the perspective of the law, the hidden ground of which is the need to preserve the city—the “we.” Socrates can therefore say, “One ought to think about the law as about something being beautiful, and to seek it as good” (314d6–8, italics mine). Good (agathon) will soon morph into useful (chrēston), for the city needs us to be moral (to pursue what we think to be beautiful or noble) for the practical purpose of forming a durable “we.” We think we aim at what is beautiful or noble and in so doing really aim at what is good in the sense of useful. Law cannot be a dogma of the city, then, because a dogma is what the city resolves (dokein), and law is not what the city consciously decides will serve as a rule. Because the city knows it chooses these dogmata, it must also be aware that they are contingent. Law here is rather what seems (dokein) to the city without its realizing that it merely seems. It is a dogma that does not know itself to be a dogma but rather understands itself to be true. This is what it means that law, which always deals with pragmata, wants to be the finding out of beings.

Having established that law is not simply political doxa, Socrates must admit that “really law appears to be some doxa at least even to me myself” (314e7–8). But if not simply doxa, then it must be doxa that is good, and what is that but true doxa? One might be inclined to wonder about the possible goodness of noble falsehoods (this is, after all, a dialogue by Plato), but that would be to miss the point, for such falsehoods are good only when believed to be true. To be good in the sense of useful, an opinion might not have to be true, but like the law, it cannot be good unless believed to be true. From the point of view of our inquiry we may not be convinced that lawfulness is a virtue, but from the point of view of the law it must be so. Doxa when good, that is, when operating fully, is true in the sense of always understanding itself to be true. It always wishes to shut down the distinction between the way things are (governed by law) and the way they ought to be. It wants, depending on how one understands the situation, either to seal closed the cave of Republic book 7 or to open it up completely to the light. The necessary and the contingent collapse in the law, for it is characteristic of law to attempt to reveal being, in the particular—in the here and now. Socrates has thus far made an argument to show that law as opinion takes itself to be true, and opinion takes itself to be the finding or invention or discovery of being. He then unaccountably concludes by saying “law then wants to be the finding out of being” (315a2–3).

“Wants” is a strange addition to the definition. The comrade will immediately drop it—in a way rightly so since Socrates in no way argued for it. Still, perhaps the fact that Socrates had to argue for the definition at all means that the qualifying “wants to be” has been present all along. It is, therefore, worth translating exeuresis as “finding out” in order not to predetermine which of its two meanings applies here. Does law want to be the invention of what is or the discovery of what is? Law pretends that the distinction makes no difference, but in working so hard at the pretense it reveals how crucial the distinction is. By protesting its own self-evidence, claiming to need no ground, law betrays that at its core is a longing to be grounded. By proclaiming pragmata to be beings, law tacitly admits that they are not. It reveals that it can settle for nothing less than the discovery of being even as it demonstrates that it deals only with its own invention of being. Law seems to be the faculty in us that in its very attempt to grasp what is, makes manifest our imperfect grasp of what is, for the very existence of law as the principle of what would make the world fully satisfactory signals our dissatisfaction with the world as it is. That we can casually say “we don't do that here” as a way of forbidding certain things we sometimes do, is the sign of the strangeness of our natures as moral beings.

As a prelude to objecting to Socrates's definition, the comrade restates it, but he alters it in several ways. First law becomes “the finding out of being”—whatever it means for it only to want to do so is silently dropped. Then what law finds out is made plural—being becomes beings. Finally “finding out” becomes a verb the form of which may indicate either the middle or the passive voice so that we cannot tell whether these beings are discovered by us or discover themselves to us. These changes are connected. The comrade finds the plurality of laws—that the law is not always and everywhere the same—puzzling because he has not noticed that if the law only wants to be the finding out of what is, it may fall short of what it wants in a variety of ways. And he does not see that this falling short may have something to do with the confused status of agency relative to the laws. That the laws “want to be the finding out of what is” suggests that they are agents. Yet if they uncover the beings to us, it is hard to see why they should do so in a variety of ways. If the laws make us, why are we not all the same? If, on the other hand, the beings are discovered by us, we are the agents. If we make the laws, their plurality may be the result of our error. This is the direction taken by Socrates's reply, first by reinserting the verb “to want” and then by attributing the plurality of law to the failure of human beings to find out what the law wants.Footnote ²² Socrates uses the same verb, exeuriskein, to indicate what the law wants and the human failure to get at what the law wants. Human beings want, but fail, to find out what law wants to find out, which Socrates has identified as being. Law asks what is; human beings ask what law is. Human beings are the beings who ask “What is what is?” and can do so only because in the law as laid down, what is has been disclosed imperfectly. In seeking the being of law understood as what seeks being, human beings display an awareness of a disparity between law and what it seeks to be. On the one hand law “wants what is” (315b2); on the other hand law wants to be the discovery of what is. It wants at once to describe our condition in the world as necessary and at the same time to get credit for the description. In describing what it proclaims to be self-evident, law wants to be revered for doing so, but why should we make so much of holding truths to be self-evident? If they are self-evident, shouldn't their status be… well… self-evident? Accordingly, the double meaning of nomos as either custom or positive law is no accident. In priding ourselves on our way as the only way, we tacitly acknowledge the existence of other possible ways.Footnote ²³ “We don't do that here” is not only an admission that we do; it is also an admission that we are not alone in our claim—there are others who do other things.

Socrates begins a curious argument here in which he calls into question whether in fact laws differ over time and from place to place. The comrade, quite sensibly, is convinced that they do and cites at some length both the Carthaginian practice of human sacrifice and changes in the Athenian burial practices over time. There are several ambiguities in the language. When he says “since, for example, it is not a law for us human beings to sacrifice” (315b8–9), he may mean that it is unlawful to sacrifice human beings or that it is unlawful for human beings to sacrifice; the difference depends on whether anthrōpous is understood as the subject or the object of the verb. Similarly at 315c8 nekrou may refer either to a corpse being buried or a corpse of the sacrificial victim used in the rite of burial, and euchutistrias may mean putting the bones of corpses in pots or exposing children in pots (i.e., killing unwanted babies). For the comrade, the most powerful example of the way in which nomoi vary is human sacrifice. Plato constructs the comrade's speech so as to emphasize the importance of human sacrifice, for all the ambiguities in the language serve to blur the distinction between human beings as subjects who use and human beings as objects of use.Footnote ²⁴ Further, in the final section of the dialogue, Socrates seeks to vindicate Minos, whom the comrade will find “savage, harsh, and unjust” precisely because he demanded human sacrifices from the Athenians. Why then should human sacrifice be so central to the issue of law?Footnote ²⁵

The question of human sacrifice is connected to the immediate sequel where Socrates complains about the length of the comrade's speech and urges that, instead of a long logos, the two examine the matter together in dialogue. This is of course not an unusual move for Socrates.Footnote ²⁶ Here he says that the goal ought not be just to speak correctly but that the one to whom you are speaking not fail to notice the answer you give. The goal of speech is to establish a “we,” which Socrates characterizes here as “going together” (315e1) or “speaking alike” (315e2). If they were to proceed by way of long speeches—or, one might say, by way of treatise and not dialogue—“speaking rightly” would yield “nothing wondrous” (315d6–7). There is no conversation when you utter a truth that utterly escapes me—nothing to wonder at. Now, talking at someone in this way means not genuinely acknowledging him as a subject—treating him as an object. What seems to connect Socrates's methodological remark with the comrade's emphasis on human sacrifice and cannibalism is that both involve the suppression of the human being as subject. Agreement, necessary for conversation, is no less necessary for law, i.e., for the discovery of being—the awareness that one has found being. Their agreement to investigate in common is sealed when Socrates says: “if you want … examine it in common with me. And again, if you want, answer” (315e2–4). To which the comrade replies, “But I do wish, Socrates, to answer whatever you want” (315e5–6). As constitutive of a subject, wanting is also constitutive of conversation and of nomos.

The comrade's long speech had been a response to Socrates's question of whether “we use the same laws always or at different times different ones, and if all use the same or different people different” (315b3–5). When the argument becomes dialogic, at first glance at least it seems to take a silly turn—we all follow the same laws because we and the Persians and everyone else hold (nomizein) the just things to be just, the weightier things heavier, the beautiful things beautiful, and finally the beings to be. At first this seems altogether tautological and leaves one without any sense of what precisely is understood as just, heavy, beautiful, and to be. Socrates seems to claim that he has provided evidence of a nomos that is held by all “always surely/exactly [dēpou] somewhere” (316a3)—a universal claim always showing up in a particular place. This has to do not with the particular content of the law—whatever the law happens to encourage or prohibit—but rather with the more general claim that something is good, weighty, or beautiful relative to other things that are bad, light, or ugly. It alludes to the fact that in its character as “wanting” or aiming, the law always involves not simply an expression of what really is but also an expression of relative being—a ranking within reality. So true is this that it extends even to its expression of being: “Isn't it the case then that, so as to speak according to everyone/everything, the beings are held to be, not the things not being both among ourselves and among all others?” (316b–4). On the one hand, this simply means it is true everywhere and always that some things are said to be and others not to be. On the other hand, it is an interesting feature of this argument in which so much turns on whether things just, beautiful, and heavy are said to be just, beautiful, and heavy, that by way of a grammatical structure called a nominal sentence, the verb to be is often conspicuously absent so that nothing is literally said to be. One might put the issue this way. A nominal sentence, where one simply juxtaposes two things understood to be connected by the verb to be, is possible because the verb to be does not really add anything. The copula “is” is not a predicate. Still, is it really true that “is” adds nothing? By indicating that two things are to be put together the copula silently invokes the subject who puts them together. While the upshot of this putting together is to say “I wasn't needed; they were already together,” my action somehow belies this claim. I am an agent (I invent) who finds himself to be a patient (I discover). Socrates's string of examples thus culminates in the question of being in order to call attention to the fact that even in the barest, most “objective” claims about the world the subject makes itself manifest, and the fact of law—any law—is always an expression of this subject. One can go one step further. Far from being tautological, the claims that the just things are just and that the beautiful things are beautiful, are meant to point to the general truth about human beings underlying the existence of any particular law in a particular time and place. Socrates originally compares nomos to a faculty of sense in order to show us that, in our taking in of them, the beings (onta) of the world are necessarily always beings for us (pragmata). This means that in our sensing of beings we are necessarily also sensing ourselves in our putting them together as beings. Nomos is in this way the faculty that governs all sensation. In taking things in we always take them in as just or unjust, or beautiful or ugly, or good or bad. The act of taking in is for human beings necessarily an act of ranking, of evaluating. This has to do with a very curious, perhaps the curious, feature of human beings. Why on earth in experiencing our world, should we experience parts of it as more beautiful, more good, and finally even more real than others? Our world seems to be made up of beings with moral weight. This is why nomos cannot be understood as just a collection of rules particular to a certain place, but must rather be understood as the universal condition for human beings to have a particular place, which place provides the foundation for a system of preferences, and so for our way of being in the world at all. It is not an accident that to Socrates's question about whether we claim the beings to be rather than the nonbeings, the comrade replies, “It seems to me, at least” (316b4).

On the one hand, whenever we display our need to experience beings in an order of rank, we make manifest the underlying truth of our being—the faculty of nomos in us. On the other hand, in every such ranking, that is, in every experience, beings emerge in their being only comparatively—as more or less what they are. We do not first sense an object “objectively” and then conclude that it is beautiful; we sense it in its beauty, and this means in a context in which it is somehow superior to the things around it. As guaranteeing that our experience will be of the comparative, nomos always gives us what is incomplete—what is somehow not. In showing itself always as a particular law, nomos as faculty reveals itself as always aiming—as wanting, but therefore also as always failing, to discover being. As underlying faculty, nomos is universal—always true and always the same; as particular law it must miss its mark. Accordingly, Socrates can say truly that “he who fails to hit being fails to hit the lawful” (316b5)—this is law as universal; and the comrade can respond in perplexity that he doesn't see how this is compatible with the fact that the laws are always being changed—this is law as particular. The comrade is perplexed for “whenever I have it in mind we in no way stop changing the laws up and down, I am unable to be persuaded/obey” (316b7–c2). On the one hand his meaning is clear; his awareness of the way law changes makes it impossible for him to accept Socrates's argument that the law is always the same. On the other hand, his sentence also means that the constant changes in the law make him unable to obey it since its constancy is the source of its power (it is, of course, interesting that the constant change in the law is a long-standing Athenian practice, or nomos).

In response to this Socrates (or perhaps Plato) does a very beautiful thing, saying, Isōs gar ouk ennoeis tauta metapetteuomena hoti tauta estin (For perhaps you do not have in mind that these things, in falling differently, are the same) (316c3–4). Socrates clearly means that holding (nomizein) something to be law is always a holding (nomos) in the same way that the act of seeing always issues in a thing seen. Yet he makes this claim by saying that these things (taûta, with a circumflex over the first syllable), however different they seem, are underneath it all the same (t'autá, with smooth breathing mark over the first syllable to indicate the contraction of ta auta and an acute accent over the second syllable). In the written Greek of Plato's time, still with capital letters only and with no diacritical marks, the difference would have been invisible. The sense of the sentence requires that the two tauta's be differentiated in order to claim the seemingly various laws to be the same. As accented, i.e., as spoken, “these” and “same” are different—they are different in tone. As written they are identical—only to be differentiated by their contexts. On the one hand, this seems a beautiful example within the text itself of what the text is meant to show—i.e., that two apparently different things may be the same. But are they? In the immediate sequel Socrates urges the comrade to “look with me” (316c4) and turns without explanation or argument to what artisans write as the paradigm for the knowledge that is the same in all of them and makes them artisans. Remember, the sameness of the two tauta's emerges only in writing. So, doctors are understood as those who know medical writings, and all doctors are said to hold (nomizein) the same things by virtue of this knowledge. This move to writing transforms something heard into something seen and thereby makes it not a matter of memory or interpretation—not a matter of tone—but something stable and precise. In Greek as in English, to listen may also mean to obey—to hearken. To read, on the other hand, introduces the possibility of rereading. The introduction of writing allows Socrates to imitate in his argument about art the natural progression of nomos from unwritten custom to written law, a movement that seems to make possible more precision as the law is stabilized by the act of making it available to sight. But it was only in writing that these things (taûta) seemed the same (t'autá). Accordingly, the analogy of the arts suggests that this may be a phantom precision, for the rules of an art written down in books are in fact only an approximation—a conveniently simplified version—of the actual practices of artisans. Similarly, “the letter of the law” never altogether captures the spirit of the law, a spirit inseparable from its accents. Socrates pretends that what all doctors have in mind (ennoein) that makes them doctors is the sum of what is written in medical text books. When he asks the comrade whether all doctors hold (nomizein) the same things, or different ones different things, the comrade says, “To me, at least, they seem [either to hold or to be] the same” (316d2). If what they do is perfectly captured by a medical text, then what they hold and what they are, for the moment, are one. The comrade then concludes that “there is much necessity that those who know, both Greek and barbarian, hold in common [sunnomizein] the same things” (316d5–6). This verb sunnomizein, to hold or believe with another, occurs only here in all of the Greek writings we possess. Plato seems to coin it as a way of indicating a problem. In aiming to discover being, nomos aims at knowledge. But the universality of knowledge seems to be indifferent to the constitution of a “we.” Knowledge points to what may be said by anyone at any time. The subject appears but only in order to cancel itself as irrelevant. Nomizein, on the other hand, does involve a “we”—to hold or believe publicly is something in principle shared. Yet this “we” comes at a cost, for it is always accompanied by a dēpou, a “precisely somewhere.” Nomos attempts to put together nomizein—we hold this and are proud of it—with the impossibility of thinking otherwise once you see what is being claimed. The problem is revealed by the comrade's conclusion that holding the same things involves “much necessity.” The “much” gives us the oomph; the “necessity” gives us the universality. But how is much necessity to be distinguished from garden-variety necessity? Nevertheless, this oxymoron is the peculiar feature of nomos, which must mix together will and necessity. It is revealed in the natural movement of law from custom to explicit rule, a movement that echoes the distinction between law as a faculty within us and law as external. Nomos involves a will to precision—it wants to be the finding out of what is. Writing, by fixing the law, means to banish all ambiguity, to make law a textbook art—precise and without all the vagary of experience. Accordingly what once ruled men more or less absolutely, if idiosyncratically, in the city behind their own backs gradually generates the imperfectly obeyed rules men lay down as absolute in the city. This movement, the consequence of law's will to universality and stability, ends by ensuring our awareness of its particularity and fallibility. For nomos, in its doubleness as both convention and law, taken for granted and explicit, in constituting the surface of things as a surface, reveals to us the existence of a hidden depth, and thus ensures that political philosophy will take its place as the eccentric core of philosophy.

Part Two: The Duplicity of the Lawgiver

Plato now (316e4) connects this doubleness of law, and in particular its problematic pairing of will and necessity, to the double meaning of the verb archein as “to begin” and “to rule.” If, Socrates suggests, writings about gardens are gardening laws, then they must be the laws of (notice we do not know whether this means governing or produced by) those knowing how to archein gardens. The arts of founding and of tending are collapsed into one by way of a duplicitous verb. This example gives way first to the example of cookery (a sign that we will soon leave writing behind since following a cookbook scrupulously certainly does not make one a cook) and then to the management of a city. Those responsible for political writings, i.e., laws, are identified first as the politikoi (either “political men” or “those ruling with the art of politics”) and the basilikoi (those with the art of the king), and then as kings and good men. By first exploiting the ambiguity of politikos as both inclusive and egalitarian on the one hand and hierarchical on the other, and then juxtaposing it to basilikos as hierarchical, Socrates has gone out of his way to use language indicating that lawmakers must simultaneously place themselves apart from, and be a part of, the city for which they make laws. They must be both founders, who because they first lay down the law cannot be subject to it in their act of founding, and rulers, who, as men among men, when they tend the laws are as subject to them as anyone else. But the knowledge that characterizes founders of the law cannot be understood as textbook learning. Founders cannot be essentially knowers of yet to be written scripture. Accordingly, Socrates now introduces a series of six examples in which law as art characterized by writing gives way to the knower as nomeus—a shepherd, but also, from the verb nemein, “distributor.” The farmer distributes seed according to worth, the flautist distributes notes for songs (nomoi in its other meaning), the trainer nourishment to “the herd of the body,” the shepherd (here poimēn) and cowherd graze (nemein) their herds, and finally the king distributes to the souls of human beings. Each of the first five examples involves a species difference between the distributor and those to whom he distributes. The question is whether this is not also true of the sixth—kingship. Socrates will soon introduce as examples Marsyas, a flautist who was flayed alive for daring to compare himself to Apollo, and Minos, the son of a god and nomeus of the laws to Crete, who is known in Athens primarily for his savagery in demanding a yearly tribute of human sacrifices. In the remainder of the dialogue Socrates seeks to salvage Minos's reputation and, by so doing, to make manifest how the law's need to be grounded in something beyond the human requires the lawgiver to be somehow more than human.

That the existence of law requires a perspective beyond the law is made clear in another way. By accepting Socrates's claim that the men who change laws are nonknowers (317b2–7), the comrade unwittingly changes an Athenian nomos, for it is a settled Athenian practice habitually to tinker with the laws. Accordingly, from the point of view of Athens, Socrates has made the comrade lawless. Socrates then asks whether they did not rightly agree that “law is a finding of being,” to which the comrade responds, “It appears.” Now of course they did not agree to this; rather, they agreed that “law wants to be the finding out of being” (italics mine). And, even if we accept Socrates's account, since they have only just now confirmed their earlier definition, they must not have known it to be true at the time when they agreed on it. They were, then, nonknowers, and hence lawless. They wanted law to be the finding out of being, but did not yet know this to be the case. The situation is further complicated by the comrade's response, for if it still only “appears” that law is the finding of being, then they are still nonknowers. In compelling the comrade to question what law is, Socrates thus has pushed him beyond the ordinary perspective of Athenian law. In making him want to know the being of law, he has made him an outsider—one who, because he does not know what law is, cannot be straightforwardly law abiding. At the same time, this vision from without, the lawlessness of wanting to know, belongs necessarily to the being of law. Accordingly, as they move back and forth with apparent indifference between law as wanting to be the finding out of what is to law as the finding of what is, the wavering of their conversation curiously mimics the problematic nature of law as the lawless laying down of the lawful. This is the same duality that requires the lawmaker to be both shepherd and sheep and is the concern of the final section of the Minos and is the reason for the dialogue's title.

Plato begins the denouement of the Minos by having Socrates ask who of the ancient kings was the author of the oldest of the laws of the Greeks and having him answer his own question before the comrade can respond. Had the comrade been allowed to answer, given the poetic myth that grounds the nomos of Athens, his response surely would not have been “Minos.” Socrates acknowledges this when he introduces an alternative, “true” myth, which he claims is grounded in Homer and Hesiod (epic poets) as opposed to tragic poets. Socrates, who has just insisted on dialogue over narration, now opts in dialogue for the truth of narration. The Athenian myth acknowledges that Rhadamanthus, the judge, is just, but insists that the lawgiver, Minos, is “wild, harsh, and unjust” (318d10). Both are called kings here and so might be said to rule (archein), but one, Rhadamanthus, acts within an already established order (he tends) while the other, Minos, acts to establish this order (he founds). One acts within the law, the other necessarily outside the law.Footnote ²⁷ Socrates insists that Minos has been unfairly slandered by the Athenians and takes the opportunity to warn the comrade of the danger of accepting this slander at face value. On the surface, his argument is simple. The comrade needs to learn about Minos because Minos is a divine human being (anthrōpos—one might have expected anēr, he-man), and to say bad things about such a man arouses the righteous indignation (nemesis—319a3) of the gods because it involves blaming one who is like them. These divine human beings are somehow necessary for law since it is they who, in connecting us to what is eternal and unchanging, enable law to be the finding out of what is—Moses, Minos, and their ilk are the necessary conditions for political life. Socrates thus warns the comrade that when one is about to blame such a man, “it is necessary to make [poieisthai] very much forethought [promētheia]” (318e10)—or to stretch the language poetically beyond what it will bear literally, “it is necessary to poetize Prometheus very much.” Prometheus (is he a “divine man”—his status as Titan is never explicit in Hesiod?) was severely punished for delivering the gift of fire, and so the arts, to human beings. Socrates's language thus reveals, against the surface grain of his argument, that there is a tension between the gods and those who reveal their secrets to human beings. The tragic vision of the Athenian poets is perhaps not so completely in error. This is revealed by Socrates's curious remark at 319a3–5: “The god, when someone blames the one like him or praises the one holding oppositely to him, is angry. And this one is the good one.” The man like the god is good? Or is it the good man who is the standard of praise, and the god likes the one who praises him? Or is the god angry when one blames one like the god and praises someone not like the god, and the one not like the god is the good man? The simple problem is this: is the god pleased or angered by antinomian activity? In disobeying the gods, is Prometheus a model or a criminal? We are both like the gods (Minos?) and unlike them (Rhadamanthus?). Which does the god admire? That the best man is somehow also the most polluted is, of course, the problem of Oedipus. Perhaps we should not be so quick to reject Athenian tragedy.

Unlike the comrade (319b1–2), Minos is not a human being born of a human being but a hero. Socrates cites Homer's praise of Minos. Now, Homer mentions Minos three times in the Odyssey. Socrates quotes from 19.178ff. and alludes to 11.568ff., but he leaves out altogether 11.322, where Minos is called “malignant” or “baleful” (oloophronos). And, of course, the lines he does quote are part of an elaborate lie Odysseus tells to Penelope. What Homer thinks of Minos is thus not nearly so clear as Socrates pretends it to be. Furthermore, the passage quoted is problematic in a variety of ways. Socrates cites Homer on “the many human beings” of Crete but neglects to point out that Homer also adds that their number is “unlimited” and their “tongues are mixed, the one with the others.” And the quotation contains two words, enneōros and oaristēs about the meanings of which there is enormous scholarly debate. In all the Greek writings we have, these words appear only in this passage of the Odyssey or in quotations or discussions of the passage. This need not mean that Homer coins the terms. Still, since there is a great deal of Greek between Homer and Plato, it does seem to suggest that Plato is citing a passage in which the key terms are even for him already unclear. Such a text is not immediately available but requires interpretation. So, Plato places us in the middle of an argument warning us, lest we risk impiety, not to err when speaking of a hero. And Socrates cites as an example of praise to be emulated a sentence so dark that we do not know whether it tells us that Minos was nine years old when he met with Zeus, or reigned for nine years, or in nine-year periods. And we do not know whether, when Zeus and Minos did meet, their intercourse consisted of sex, of play, or of conversation. Furthermore, Socrates quotes this passage just before describing Zeus as a sophistēs, a word once meaning “adept” or “master” or “wise man” but by Plato's time meaning “sophist.” Socrates, then, leaves out what Homer says about the variety of languages among the Cretans and then uses words either so rare as to have no fixed meaning or words known to vary in meaning from one dialect to another. He warns us of the impiety of erring in speech about heroes and then quotes an elaborate lie in praise of a hero that contains words of unknown meaning. How, then, is one ever to avoid error in speech and the impiety it involves? Socrates's subsequent “clarification” of these ambiguities is itself filled with double entendres, mostly sexual.Footnote ²⁸ Socrates's interpretation of the passage from Homer, while plausible, is thus hardly the only possibility. And it is itself so riddled with double entendres as to require the clarification of interpretation. We are meant to see that the appeal to the divine (here the intercourse between Minos and Zeus) needed to ground the law always itself requires interpretation and thereby reintroduces fluidity into the law in its attempt to solidify the law. We must not lose sight of the fact that Socrates's appeal is to poetry. He already knows that “the poets are the unacknowledged legislators of the world.”

The content of Socrates's poetic grounding of the law preserves within it the tension that gave rise to it. Homer had made Minos a judge—i.e., not a lawgiver. Socrates's Minos, tutored by his father Zeus, gives laws to Crete and makes his brother Rhadamanthus judge. Both accounts preserve the distinction between founding and tending the law, or, one might say, between text and interpretation of the text. Minos, praised above others both for his birth and for his education, returned every nine years to Zeus's cave to learn some things and show off others so as to win his father's praise. Socrates offers an alternative interpretation of these visits—presumably to discredit it. Minos is thought by some to drink and play with Zeus. But this, Socrates argues, could not be, for it is precisely these sorts of drinking bouts that are outlawed by Cretan law, and Minos would have to have been a hypocrite to indulge in them. Now, this moral test of Minos depends on understanding him to be bound by the laws he lays down. It depends on the equality of all before the law. This, however, seems to be exactly what Socrates is in the midst of contesting. Minos, unlike the comrade and the rest of us, is not an anthrōpos anthrōpou—a human being born of a human being. He is not an ordinary man but a hero. Book 1 of Plato's Laws, at least, suggests that a sort of drunkenness or license or antinomian behavior is necessary to one who is thinking about what would make a good law and is therefore himself outside the law. The Minos who lays down laws for “his citizens” (320b4–5) is perhaps not to be understood as simply one citizen among equals. He is, after all, an anthrōpos theou—a human being born of a god.

Intercourse with Zeus in some way that is left indeterminate qualifies Minos to bring laws to the rest of Crete. Minos then educates his brother, but not as he has been educated in the full range of the kingly art. Rhadamanthus's purview, limited to the order already established by the laws, is what to do when there is a breach in the law. Minos teaches him to be a judge, one who guards the law, not one who makes it. This art of guarding is then further divided, for while Rhadamanthus judges in the town, another, Talos, judges in the country. His circuit takes him three times a year around the country. Talos carries with him bronze tablets on which the laws are written and comes to be known for this reason as “Bronze.” Socrates concludes his account with a quotation from a poem of Hesiod (we do not have the poem) and interprets Minos's “holding Zeus's scepter” to mean “being educated by Zeus.” What are we to make of these details? Talos travels far from any visible manifestation of authority, but he carries with him artifacts that make the law manifest as a stable object—bronze tablets. The letter of the law is a sign that the law is “unchanging through all time” (320b5). Talos's own authority derives from this manifest stability. This display is less necessary in the city, for Minos himself is there and is interpreted by Rhadamanthus, although one imagines that after his death, bronze tablets will be necessary there as well. This relation repeats the relation between Zeus and Minos, for that Minos holds Zeus's scepter means that he goes to the cave and returns with the word of god. Socrates's story sets up a geometric progression so that Talos : Rhadamanthus :: Rhadamanthus : Minos :: Minos : Zeus—each stage taking us closer to the ultimate source of authority. Of course the whole account is the result of an interpretation of a poem. It depends on interpreting “scepter” to be a poetic image for education. The concreteness or objectivity or solidity so necessary to law is therefore rather slippery. As long as we can make an appeal to bronze tablets, Minos, or Zeus's cave, the law looks to be stable—the same law. But were this simply true there would be no need for a judge—an interpreter of law. It is this illusion of stability that allows the slide from bronze tablet to bronze Talos. Talos becomes a man endowed with more than human stature—he becomes a statue.

The comrade still wants to know why Minos has such a bad reputation. The phrase with which he begins his question, Dia ti oun pote (“On account of what ever… ?”) might just be translated “With respect to Zeus, why… ?” Socrates's reply contains a similar ambiguity.Footnote ²⁹ The single word dia contains two possibilities. It names Zeus, the settled source of authority, and it marks the beginning, first of a question, and then of an interpretation. Its ambiguity points to the fundamental ambiguity of law, which must at once justify itself in order to provide a reason for obedience, and at the same time command unquestioning obedience. We must be persuaded (peithomai) and we must obey (peithomai). Socrates answers the comrade's question here by blaming the poets for Minos's bad reputation. Minos's error (although if he was so well educated by Zeus, one wonders why he did not anticipate it) was to make war on Athens, the home of all wisdom—wisdom both other than poetic, Socrates says, and poetic, and both of the rest of poetry and of tragedy. Socrates gradually homes in on the tragic poets as the culprits. They have enormous power over the opinions of the many. It was their reaction to Minos's demand for a yearly tribute of human sacrifices (notice that Socrates neither denies the fact of the sacrifices nor attempts to justify them) that ruined his reputation. Socrates is compelled here to provide a new mythic account of the origin of tragedy, for its actual origin falls hundreds of years after the era of Minos. Poets who do not yet exist can scarcely be blamed for the blame of Minos. Socrates, therefore, makes the tragic poets characters in a revisionist poem, and thus, in the very act of denouncing the power of the poets, he imitates it by rewriting the history of Athens to suit his own purposes. By making tragedy an “ancient discovery” (321a3) of Athens, he indicates that there is something timeless about what tragedy points to. Tragedy seems to be the timeless and stable undercutting of timeless stability insofar as it reveals the permanent internal contradiction of the law. Socrates attacks tragedy at the end of the Minos, but in attacking it he also imitates it by laying bare the tension in the law of Athens.Footnote ³⁰ But there is something more to Socrates's treatment of poetry. In blaming the tragic poets for blaming Minos, Socrates calls our attention to the manner in which poetic language never simply presents its objects “objectively.” That the poets are the unacknowledged legislators of the world may also have to do, then, with the fact that, as our paradigm for what it means to enter into the world evaluatively, poetry shows us what it means that nomos is the faculty through which we appropriate the world. Like Aristotle, Plato knows that human nature may be alternately described as rational, political, and poetic while nevertheless remaining one.

The surface teaching of the Minos is the stability of the law. In the act of discovering this stability, the comrade nevertheless experiences the necessary instability of law. The stability of the law depends on poetry for its embodiment in all sorts of ways; this is the meaning of Talos, the bronze. But the ground of the law, once objectified, cannot be revealed without revealing itself as also requiring justification.Footnote ³¹ Only an invisible god could obligate us absolutely to a law of uncertain meaning. The law requires the cave of Zeus, which both reveals and conceals the truth of the law, and the cave of Zeus is a poetic image of poetry.