Global Legal History

A Comparative Law Perspective

Joshua C. Tate, José Reinaldo de Lima Lopes, Andrés Botero-Bernal

• Publisher: Routledge
• Year: 2018
• Print ISBN: 9781138478497
• eBook ISBN: 9781351068468
• Edition: 1
• Topic: History
• Subtopic: Social History
• Index: History

This collection brings together a group of international legal historians to further scholarship in different areas of comparative and regional legal history. Authors are drawn from Europe, Asia, and the Americas to produce new insights into the relationship between law and society across time and space. The book is divided into three parts: legal history and legal culture across borders, constitutional experiences in global perspective, and the history of judicial experiences. The three themes, and the chapters corresponding to each, provide a balance between public law and private law topics, and reflect a variety of methodologies, both empirical and theoretical. The volume highlights the gains that may be made by comparing the development of law in different countries and different time periods.

The book will be of interest to an international readership in Legal History, Comparative Law, Law and Society, and History.

Part I

Legal history and legal culture across borders

1 Sincerity-based proper relationship

Socrates and Confucius

Chi-Shing Chen

This chapter will explore similarities between the thought of the Chinese philosopher Confucius (551 BCE–479 BCE) and the ancient Greek philosopher Socrates (c. 470 BCE–c. 399 BCE), as presented in the writings of his student Plato, with regard to the cultivation of one’s virtues. These similarities are centered on a concept that may be described as a “sincerity-based proper relationship.”

Sincerity is an indispensable element in Plato’s explanation of Socratic elenchus.¹ In Plato’s writings, Socrates claims to be the most knowledgeable person in Athens because he knows his own ignorance. One acknowledges one’s ignorance in an elenctic endeavor after one holds two beliefs that are contradictory to each other. If either of these beliefs is not a true reflection of one’s mind, the whole effort is futile. This is also the reason why Socrates always requires all interlocutors to say what they believe.

Confucius does not raise sincerity as a teaching in the Analects, but his frequent commendations of loyalty and trustworthiness foretell one of the most developed theories of sincerity for both political philosophy and metaphysics by later Confucians in the Great Learning and the Centrality and Commonality. One can also notice an omnipresence of sincerity in the Confucian teaching in the Analects if one realizes that all virtues have an internal dimension within oneself. No virtuous act can be rightly attributed to a person who is insincere.

Proper relationship is also emphasized by both Plato and Confucius. For Plato, self-knowledge refers to one’s self-transformation, with an ordered soul as the final goal. In Plato’s Gorgias, Socrates tells Callicles that the proper relationship within one’s soul is called moderation, which is the basis for one’s proper relationship with others, namely, justice. For Confucius, “Ren” means one’s proper relationship with others in different contexts and under different roles, which is extensively discussed in the Analects.

Socratic virtue

This section seeks to point out that sincerity is not only emphasized by Plato in the early definitional dialogues; such emphasis is also necessary. Before I proceed to explore the Platonic idea of sincerity, I want to first survey Plato’s exploration of the idea of soul for the purpose of illustrating the necessity and importance of sincerity in the Platonic idea of virtue in terms of accessing and improving one’s soul.

In his discussion of the Socratic idea of virtue, especially the relationship between the specific parts of virtue such as piety, courage, moderation, justice, and virtue as a whole, Ferejohn argued we can better understand the idea by seeing virtue as “a single state-of-soul” (Ferejohn 1984). More recently, Ferejohn again made the argument that virtue in Plato’s Socratic dialogues should be interpreted as a state-of-soul and that Socrates’ search for definitions with his interlocutors really functions as a diagnosis of such a state in the early dialogues. Ferejohn believes our search effort will be in vain if we perceive Socrates as an intellectualist looking for a behavioral term in his definitional dialogues (Ferejohn 2011). Ferejohn hence believes Plato commits to a more radical idea than traditional wisdom admits. This chapter will argue that if one approaches Plato from the Confucian tradition, the Socratic view of virtue as the best state-of-soul is not radical in the least.²

Socratic exploration of the idea of the soul

In the Apology of Socrates, one of Plato’s earliest writings, when Socrates defends himself in front of hundreds of judges in the Athenian court, Socrates did use the term “state of your soul.” He explains what he is doing when he goes around and talks to people in his own particular way. “For I go around doing nothing but persuading both young and old among you not to care for your body or your wealth in preference to or as strongly as for the best possible state of your soul.” Socrates believes that one’s best possible state-of-soul, that is, one’s excellence brings wealth and all other good things, and not vice versa.³

But before one can reach the best possible state of the soul, one first needs to be able to access or address one’s soul. How could one do that? Words are one of the most widely discussed sensible means to address the soul in the Socratic definitional dialogues.

In the beginning of Charmides, Socrates is asked by Charmides to help treat his headache. Socrates suggests that before Charmides can treat his head, he needs to treat his whole body; and before doing that, based on what Socrates learnt from a Thracian doctor, Charmides needs to treat his soul. The soul is the source for both bodily health and disease⁴; the soul is cured by means of certain charms, which consist of beautiful words. It is these words that bring temperance to the soul, while a soul with temperance makes it easy to provide health for both the head and the rest of the body.⁵

The reason why Socrates goes around and talks to people is that words alone are qualitatively different from those in a dialogue, which Socrates once described as from soul to soul.⁶ For Socrates, one should convey what one believes, that is, one should be sincere, in order to enable one’s ideas to reach the soul of others. The content or words conveyed cannot be separated from one’s manner. In Euthydemus, facing his interlocutors who are using an eristic approach by twisting the words to trap their discussants, Socrates asks whether things have sense because they have a soul. After Socrates receives an affirmative answer, he further raises the question “do you know any phrase that has soul?”⁷

In Gorgias, Socrates talks with Gorgias and two of his students, Polus and Callicles, about oratory which the three of them professionally practice. The idea of the soul is brought up frequently. It is with Polus that Socrates expresses clearly what he thinks of orators. He believes they are like pastry bakers, providing things people like but without a benefit that is equivalent to medicine for people’s health. During the interchanges, Socrates brings up the issue of whether the soul governs the body, or the body governs itself. What Socrates wants to point out is that the soul, unlike the body, can choose between medicine and pastry baking. If one allows the body to make decisions based on the gratification it receives, one ends up living in a chaotic world where things are all mixed up.⁸

Socrates then argues with Polus regarding who is happier, those who are just or those who are unjust. Polus believes that unjust people, if not caught, are happier. In response to Polus, Socrates brings up the soul again. Socrates says that a soul that is disciplined is one that is admirable, just, and causes one to do good, which makes one better through getting rid of something bad in one’s soul.⁹ Yet the corruption of one’s soul, that is, injustice, is the worst state of corruption, in comparison with the corruption of one’s finances and body, which lead to poverty and disease.¹⁰

Callicles then replaces Polus. In the beginning of the dialogue between Socrates and Callicles, Socrates praises Callicles as a good partner for the adequate testing of one’s soul. Socrates believes the knowledge of the interlocutor is important, for without that knowledge, the testing cannot go any deeper. Whether the interlocutor is concerned for his partner and the frankness of the interlocutor is also important. Lacking good will, the interlocutor will not speak the truth and the joint search will end up in vain. Socrates thinks both Gorgias and Polus are both wise and care for him, but they lack frankness since they are more ashamed than they need to be.¹¹

In the previous discussion of the Apology, we considered Socrates’ own confession that he goes around and talks to all walks of life. In Xenophon’s Memorabilia, Socrates goes further and expresses his belief that he contributes to the public life of Athens best by talking to Athenians whenever he can about good citizenship.¹² In the debate between Socrates and Callicles, Socrates brings up the issue of what a good orator is, explaining that he should be the one that makes “the soul of people as good as possible” no matter “the audience will find it more pleasant or unpleasant.” Socrates then challenges Callicles to say whether he has seen such a good orator.¹³

Toward the end of Gorgias, Socrates says something important about the soul, which I will further elaborate in the next section on Socratic proper relationship. Socrates says that “the name for the states of organization and order of the soul is ‘lawful’ and ‘law,’ which lead people to become law-abiding and orderly, and these are justice and self-control.” This should guide a good orator: to enable justice, self-control, and excellence to exist in the soul of people.¹⁴ Therefore, a self-controlled soul is a good one. A self-controlled man will do what’s appropriate to both the gods and human beings, which are called piety and justice accordingly.¹⁵

In the definitional dialogues, Plato deals with human relationships mainly in terms of justice and friendship. Socrates discusses justice in Republic I, while friendship is dealt with in Lysis. In Lysis, searching with some young men for a definition for a friend, Socrates explores whether a person who is neither good nor bad in his soul, his body, or in both body and soul – because of this presence of evil becomes a friend of the good.¹⁶ Friendship is a kind of belonging, in the soul or some characteristic, habit or aspect of the soul.¹⁷ In Republic I, Socrates explores some exclusive functions of a soul: taking care of things, ruling, deliberating, and living. These are things that can be dealt with only by one’s soul. A virtuous soul functions well with regard to these matters and enables one to live well.¹⁸

Socratic sincerity

Although Plato’s interpretation of Socratic moral knowledge and the methodology to engage such knowledge, such as elenchus, have been extensively studied by the scholarly community, the Socratic requirement of sincerity has not been neglected: “Say what you believe” is a primary topic for such inquiry (Irwin 1993; Vlastos 1994). This subsection will explore this topic further.

One obvious example of the importance of sincerity, as discussed in the previous subsection, has to do with the Socratic observation that a quality test for self requires the partner to be knowledgeable, frank, and having good will. The requirement that the partner be knowledgeable has already been addressed. I focus here on the criteria of frankness and of being concerned for the interlocutor. Plato does not appear to have had a fully realized theory for these attitudinal requirements: rather, it seems that both of them are parts of the general requirement of sincerity, in a Socratic way of searching for truth.

I begin with an extended discussion of parts of Alcibiades, which was briefly touched upon in the previous subsection.¹⁹ In the text, Socrates warns Alcibiades not to rush into politics before he is well educated, otherwise Alcibiades will be in the worst state of stupidity: he does not know that he does not know. Before Socrates reaches his judgment, he explains to Alcibiades how one knows that one does not know and illustrates the connection between knowing and the soul.

Socrates explains that if one gives conflicting answers about something that lacks meaning, it is a clear sign that one does not know. One’s soul wavers when one does not know about something. However, a person’s soul will not waver if he knows that he does not know. What we are meant to take from this is that our soul will not waver under two conditions: that we know or that we know we do not know. The third condition, in which we do not know that we do not know, is the worst condition one can be in: “the most disgraceful sort of stupidity.”²⁰

Socrates then encourages Alcibiades to think about how we can improve our condition to know and suggest that if we do not know what we are, it is hard for us to know what skills can make us better. “[I]f we know ourselves, then we might be able to know how to cultivate ourselves, but if we don’t know ourselves, we’ll never know how.”²¹ B...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Contents
• List of figures
• List of tables
• List of contributors
• Global comparative legal history: An introduction
• PART I: Legal history and legal culture across borders
• PART II: Constitutional experiences in global perspective
• Index