[lit-ideas] Re: Hartiana
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- Date: Tue, 17 Mar 2015 06:06:01 -0400
We are considering two statements by Carneades and two reactions by Cato.
(i) It is well known that Carneades demolished the 'concept' of "justice"
held by the Romans. It is this fact that was brought in as comparing him
with H. L. A. Hart, who demolished the concept of law held by his predecessor
in the Chair of Jurisprudence at Oxford (and note that "Jurisprudence" is
a complex term that INVOLVES 'justice', hence 'juris-').
(ii) McEvoy alleges that to see Carneades as demolishing the concept of
Roman 'justice' via conceptual analysis is comparable to Carneades having been
a Marxist avant la lettre: "Cato recognised, in Carneades' lecture, the
"false consciousness" of the idea of Roman 'justice' and its incompatibility
with 'true' justice such we would have only after, dialectically, we had
overthrown the Romans by proletarian revolution and progressed through the
stage of the 'dictatorship of the proletariat' to true stateless freedom."
Mmm... Interesting. On the whole, it is reputed that Cato, while an
obvious conservative who would have feared the changes in the 'younger'
generation by those who BELIEVED in the new 'contractualist' analysis of 'the
just'
given by Carneades (in Greek, that many Romans found hard to understand 'on
hearing' -- they were more used to read it) is usually interpreted as a
repugnance for the kind of RELATIVISM that Cato saw in _all_ philosophical
_disputationes_ (hence while Oxonian and Athenian dialectics are OK, "Roman
dialectics" is post-155 B. C.), it may well be that Cato's fear was hiding a
sort of anti-Marxist bias.
(iii) Cato was practical: he convinced the Senate to pass a law by which
Athenian philosophers were personae non-gratae in Rome -- the equivalent of
having H. L. H. Hart, proposing a positivist approach to law, being held
persona non grata not just in Cambridge, but the London House of Lords.
(iv) Cato is allged to have said: "O how blind we are to that which we
fail to see" -- which, in the context, is possibly tautological. By
disimplicature it ain't, with Cato meaning 'There exists those out there, but
we are
unable to see them -- either by our own decision to deny their visual
existence, or by our incapacity to do so -- but only in the latter case should
'blind' be negatively evaluated. Blindness can be a virtue, too, you know.
Actually, there were two Catos. This is Cato the Elder we are discussing.
Cato the younger also suffered from the fortunes of the Roman system of
'justice'. After the civil war (when 'Roman law' was perhaps an oxymoron),
Cato was forced to commit suicide. This was Cato the younger. In general,
classical historiography, Cato the younger is considered to have fallen 'out of
the mainstream' and the establishment, since the direct line goes from
Julius Caesar to Ottavian, the first Roman emperor. Those who lost the civil
war do not really 'make history', as the Americans call it -- it's different
with those who lost the American civil war, perhaps --. Only in Pharsalia,
by LUCAN, is Cato the younger held the hero he really was!
Omar was wondering about the statements by Carneades and Cato the elder's
over-reaction.
Omar is right that, unlike the work by H. L. A. Hart, those by Carneades
are non-extant.
Diogenes reports on some of them. For example, Diogenes writes:
Κυρηναῖος. οὗτος τὰ τῶν Στωικῶν
βιβλία ἀναγνοὺς ἐπιμελῶς <καὶ μάλιστα> τὰ Χρυσίππου,
ἐπιεικῶς
αὐτοῖς ἀντέλεγε καὶ εὐημέρει τοσοῦτον, ὥστε ἐκεῖνο
ἐπιλέγειν·
εἰ μὴ γὰρ ἦν Χρύσιππος, οὐκ ἂν ἦν ἐγώ.
i.e.
"Carneades read all the books of the Stoics with great care, and especially
those of Chrysippus; and then he wrote replies to them, but did it at the
same time with such modesty that he used to say, "If Chrysippus had not
lived, I should never have existed.""
The equivalent would be to have Raz utter,
"If Hart had not lived, I should never have existed."
which surely is derogatory towards Raz, which disimplicates that Carneades
was engaged in the figure of speech called 'hyperbole' (rather than
providing a Kripkean conditional).
"φιλόπονος δ' ἄνθρωπος γέγονεν εἰ καί τις ἄλλος, ἐν μὲν
τοῖς
φυσικοῖς ἧττον φερόμενος, ἐν δὲ τοῖς ἠθικοῖς μᾶλλον.
ὅθεν καὶ
ἐκόμα καὶ ἔτρεφεν ὄνυχας ἀσχολίᾳ τῇ περὶ τοὺς λόγους
. τοσοῦτον
δ' ἴσχυσεν ἐν φιλοσοφίᾳ ὥστε καὶ τοὺς ῥήτορας
ἀπολύσαντας ἐκ
τῶν σχολῶν παρ' αὐτὸν ἰέναι καὶ αὐτοῦ ἀκούειν."
"Carneades was very fond of the discussion of ethical topics, on which
account he used to let his hair and his nails grow, from his entire devotion of
all his time to philosophical discussion. And he was so eminent as a
philosopher, that the orators would quit their own schools and come and listen
to his lectures."
Diogenes fails to report that it was his lectures that got him banished
from Rome, too.
Ἦν δὲ καὶ μεγαλοφωνότατος, ὥστε τὸν γυμνασίαρχον προσ-
πέμψαι αὐτῷ μὴ οὕτω βοᾶν· τὸν δὲ εἰπεῖν, "καὶ δὸς
μέτρον
φωνῆς." ὅθεν εὐστόχως ἑλόντα ἀμείψασθαι· φάναι γάρ, "
μέτρον
ἔχεις τοὺς ἀκούοντας."
Carneades was also a man of a very powerful voice, so that the president of
the gymnasium sent to him once, to desire he would not shout so loudly.
And he replied, "Give me then, measure for my voice." And the gymnasiarch
again rejoined with great wit, for he said "You have a measure in your pupils."
Cato (the elder) NOT being one of them.
δεινῶς τ' ἦν ἐπιπληκτικὸς καὶ ἐν ταῖς
ζητήσεσι δύσμαχος· τά τε δεῖπνα λοιπὸν παρῃτεῖτο
Carneades was a very vehement lecturer, and one difficult to contend with
in the investigation of a point. And he used to decline all invitations to
entertainments.
The implicature here seems to be that he saw that lecture against Roman
justice as being SERIOUS in nature, as it was. Even if it amused some of the
younger generations of Romans. "He taught us the power of what conceptual
analysis in philosophy could be like," it was almost as if they were saying.
Note that Diogenes has Carneades as being "one difficult to contend with in
the investigation of a point."
Hence Cato the elder seen as having over-reacted. Diogenes is not saying
that it was IMPOSSIBLE to content with Carneades in the investigation of a
point -- that Roman jurisprudence was bad -- only 'difficult'. Yet, instead
of engaging in a philosophical discussion of the merits and demerits of
Carneades's contractualist view of Roman jurisprudence, Cato the elder opted
to
exile him ("Out of sight, out of mind" -- how wong he was!).
οὗτός ποτε Μέντορος τοῦ Βιθυνοῦ μαθητοῦ
ὄντος καὶ παρ' αὐτὸν ἐλθόντος εἰς τὴν διατριβήν, ὡς
ἐπείρα
αὐτοῦ τὴν παλλακὴν ὁ Μέντωρ, καθά φησι Φαβωρῖνος ἐν
Παντο-
δαπῇ ἱστορίᾳ (FHG iii. 582), μεταξὺ λέγων παρῴδησεν εἰς
αὐτόν·
64πωλεῖταί τις δεῦρο γέρων ἅλιος νημερτής,
Μέντορι εἰδόμενος ἠμὲν δέμας ἠδὲ καὶ αὐδήν·
τοῦτον σχολῆς τῆσδ' ἐκκεκηρῦχθαι λέγω·
καὶ ὃς ἀναστάς·
οἱ μὲν ἐκήρυσσον, τοὶ δ' ἠγείροντο μάλ' ὦκα.
Δειλότερον δέ πως δοκεῖ περὶ τὴν τελευτὴν ἀνεστράφθαι
, ὅτε
συνεχὲς ἔλεγεν, "ἡ συστήσασα φύσις καὶ διαλύσει."
μαθών τε
Ἀντίπατρον φάρμακον πιόντα ἀποθανεῖν, παρωρμήθη πρὸς
τὸ
εὐθαρσὲς τῆς ἀπαλλαγῆς καί φησι, "δότε οὖν κἀμοί·" τῶν
δὲ
εἰπόντων, "τί;", "οἰνόμελι," εἶπεν. τελευτῶντος δ' αὐτοῦ
φασιν
ἔκλειψιν γενέσθαι σελήνης, συμπάθειαν, ὡς ἂν εἴποι
τις, αἰνιττο-
μένου τοῦ μεθ' ἥλιον καλλίστου τῶν ἄστρων.
65Φησὶ δὲ Ἀπολλόδωρος ἐν Χρονικοῖς (FGrH 244 F 51)
ἀπελθεῖν
αὐτὸν ἐξ ἀνθρώπων ἔτει τετάρτῳ τῆς δευτέρας καὶ
ἑξηκοστῆς καὶ
ἑκατοστῆς Ὀλυμπιάδος, βιώσαντα ἔτη πέντε πρὸς τοῖς
ὀγδο-
ήκοντα. φέρονται δ' αὐτοῦ ἐπιστολαὶ πρὸς Ἀριαράθην
τὸν Καππα-
δοκίας βασιλέα. τὰ δὲ λοιπὰ αὐτοῦ οἱ μαθηταὶ
συνέγραψαν·
αὐτὸς δὲ κατέλιπεν οὐδέν. ἔστι καὶ εἰς τοῦτον ἡμῶν τῷ
λογα-
οιδικῷ μέτρῳ καὶ Ἀρχεβουλείῳ (App. Anth. v. 39)·
τί με Καρνεάδην, τί με, Μοῦσα, θέλεις ἐλέγχειν;
ἀμαθὴς <γὰρ> ὃς οὔτι κάτοιδεν ὅπως δεδοίκει
τὸ θανεῖν· ὅτε καὶ φθισικήν ποτ' ἔχων κακίστην
νόσον, οὐκ ἔθελεν λύσιν ἰσχέμεν· ἀλλ' ἀκούσας
ὅτι φάρμακον Ἀντίπατρός <τι> πιὼν ἀπέσβη,
66"δότε τοίνυν," ἔφησε, "τὶ κἀμὲ πιεῖν." "τί μέντοι;
τί;" "δότ' οἰνόμελι." σφόδρα τ' εἶχε πρόχειρα ταυτί·
"φύσις ἡ συνέχουσά με καὶ διαλύσεται δή."
ὁ μὲν οὐδὲν ἔλασσον ἔβη κατὰ γῆς, ἐνῆν δὲ
τὰ πλέω κακὰ κέρδε' ἔχοντα μολεῖν ἐς ᾅδην.
Λέγεται καὶ τὰς ὄψεις νυκτὸς ὑποχυθῆναι καὶ ἀγνοεῖν·
κελεῦσαί
τε τὸν παῖδα λύχνον ἅψαι· εἰσκομίσαντος δὲ καὶ
εἰπόντος,
"κεκόμικα," "οὐκοῦν," εἰπεῖν, "σὺ ἀναγίνωσκε."
Τούτου πολλοὶ μὲν καὶ ἄλλοι γεγόνασι μαθηταί,
ἐλλογιμώτατος
δὲ Κλειτόμαχος· περὶ οὗ καὶ λεκτέον.
Γέγονε μέντοι καὶ ἄλλος Καρνεάδης, ἐλεγείας ποιητὴς
ψυχρός.
While his famous Roman lecture against Roman jurisprudence is not extant
(except in the overreaction by Cato the elder) there are some letters extant
addressed by him the king of the Cappadocians, which are amusing in parts,
"Dear king,
You are receiving a letter by one that is not one."
I want to provide an analysis of 'the probable'"
The king's replies are not extant ('but then,' as Strawson would
gratuitously add, 'perhaps they don't exist' -- implicating: 'the king couldn't
be
bothered').
"All the other writings which are attributed to him were written by his
disciples, for he himself left nothing behind him."
It was all _unpublications_. He possibly regarded his lecture against the
virtues of Roman jurisprudence as one of them. (To be read after his
previous lecture extolling the optimality of Roman jurisprudence).
Carneades is said to have decided the order of his lectures carefully. "I
thought of giving the first lecture on the bads of Roman jurisprudence, and
the second on the goods of it, but changed my mind." It may well be argued
that he had proceeded as he first planned, philosophy would have been
established in Rome at an earlier date (than it was), since Cato the elder
would
have been pleased, even amused, alla Queen Victoria.
On his death, Carneades was succeeded by Carneades, but this was the son of
Polemarchus, and thus different from Carneades (who was dead by then).
While O. K. is right that Carneades never wrote his speech, it (the speech)
is used politically by CICERO, in "The Republic". He has PHILUS recite it,
and LOELIUS provide a refutation. Cicero is, as it were, repeating the
events of that year of grace, 155 B.C., but in the inverse order, since
Carneades first provided a conceptual analysis of jurisprudence which was
valuational positive, followed by an alternate one which was not.
Cicero has Philus say,
"Very well; I obey you, and wilfully with my eyes open, I will undertake
this dirty business. Since those who seek for gold do not flinch at the sight
of the mud, we, who search for justice, which is far more precious than
gold, must overcome all dainty scruples. I will therefore, make use of the
antagonist arguments of a foreigner, and assume his character in using them.
The pleas, therefore, now to be delivered by Philus are those once employed
by Carneades, accustomed to express whatever served his turn. Let it be
understood, therefore, that I by no means express my own sentiments, but
those of Carneades, in order that you may refute this philosopher, who was
wont
to turn the best causes into joke, through the mere wantonness of wit.
When Philus had thus spoken, he took a general review of the leading
arguments that Carneades had brought forward to prove that
justice was neither eternal, immutable, nor universal.
Having put these sophistical arguments into their most specious and
plausible form, he thus continued his ingenious pleadings."
This passage by Philus was much commented by later philosophers, such as
the French Pascal. In one of his moments of sceptical misanthropy, from
which he was hardly rescued by religion, Pascal denies a universal "sense" of
justice, and reasoned like Carneades.
“Three degrees of elevation of the pole” says Pascal, “overturn the whole
system of jurisprudence; a line of meridian decides between truth and
falsehood; and a brief possession, between rights and no rights. The
fundamental
laws are changed; equity has its revolutions. A comical justice enough,
which a river or a mountain can determine, so that a decision is correct on
this side of the Pyrannees, which, on the other would be scouted as infamous.
”
Pascal, however, adds, “we cannot, indeed deny the existence of natural
laws: but artifice and chicanery have corrupted all things.”
--- Hart on the other hand, had a few negative things to say about "NATURAL
LAW", so-called.
The reaction by Loelius may be interpreted as a fairly fair reconstruction
of Carneades's first lecture on Roman jurisprudence:
Cicero has Lœlius say:
"This Carneades ought not to be even listened to by our the Romans."
"I think all the while I hear him, that he must be a very impure person."
"If he be not, as I would fain believe, his discourse is not less
pernicious."
Loelius's defense of Roman jurisprudence:
"There is a true law, a right reason, conformable to nature, universal,
unchangeable, eternal, whose commands urge us to duty, and whose prohibitions
restrain us from evil. Whether it enjoins or forbids, the good respect its
injunctions, and the wicked treat them with indifference. This law cannot
be contradicted by any other law, and is not liable either to derogation or
abrogation. Neither the senate nor the people can give us any dispensation
for not obeying this universal law of justice. It needs no other expositor
and interpreter than our own conscience. It is not one thing at Rome and
another at Athens; one thing to–day and another to–morrow; but in all times
and nations this universal law must for ever reign, eternal and
imperishable. It is the sovereign master and emperor of all beings. God
himself is its
author,—its promulgator,—its enforcer. He who obeys it not, flies from
himself, and does violence to the very nature of man. For his crime he must
endure the severest penalties hereafter, even if he avoid the usual
misfortunes of the present life.
The virtue which obeys this law, nobly aspires to glory, which is virtue’s
sure and appropriate reward,—a prize she can accept without insolence, or
forego without repining. When a man is inspired by virtue such as this, what
bribes can you offer him, — what treasures, — what thrones, — what
empires? He considers these but mortal goods, and esteems his own, divine. And
if
the ingratitude of the people, and the envy of his competitors, or the
violence of powerful enemies, despoil his virtue of its earthly recompense, he
still enjoys a thousand consolations in the approbation of conscience, and
sustains himself by contemplating the beauty of moral rectitude. This
virtue, in order to be true, must be universal. Tiberius Gracchus continued
faithful to his fellow–citizens, but he violated the rights and treaties
guaranteed to our allies and the Latin peoples. If this habit of arbitrary
violence extends and associates our authority, not with equity, but force, so
that those who had voluntarily obeyed us, are only restrained by fear; then,
although we, during our days, may escape the peril, yet am I solicitous
respecting the safety of our posterity, and the immortality of the
Commonwealth itself, which, doubtless, might become perpetual and invincible,
if our
people would maintain their ancient institutions and manners.—(Quæ si
consuetudo ac licentia manare cæperit latius, imperiumque nostrum ad vim a
jure
traduxerit, ut qui adhuc voluntate nobis obediunt, terrore teneantur. Etsi
nobis qui id ætatis sumus, evilgilatum fere est, tamen de posteris nostris,
et de illa immortalitate [272]Republicæ sollicitor, quæ poterat esse
perpetua si patriis viveretur institutis et moribus)."
Cicero concludes:
"When Lælius had ceased to speak, all those that were present expressed
the extreme pleasure they found in his discourse."
which was exactly what all those that were present when Carneades gave his
first speech found on that famous Wednesday of 155 B. C.
Instead of taking the alternate analysis Carneades gave on Thursday as a
'challenge' and invitation to indulge in 'legal philosophy', they (meaning
Cato the elder) had him exile. "Is that _fair_?", Carneades is said to have
mentioned as he boarded the ship in Ostia. Answers from the sailors who
heard him can only be guessed.
Cheers,
Speranza
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