The Other Trial of Socrates

The trial at which Socrates was sentenced to death is legendary. In 399 BC he was charged with believing in false gods and corrupting the young. After being found guilty, he was sentenced to death. Later, he was given the chance to escape. He refused, telling his friends that in a democracy we only have to do two things: obey the law and try to change it when it is wrong.

Largely forgotten in the aftermath of Socrates’s execution is the fact that seven years earlier Socrates had been involved in another important trial. It was a trial in which Socrates made an even greater contribution to our understanding of democratic government. It was a trial that deserves to be remembered.

The outlines of Socrates’s life are well known. His father was a stonemason and his mother was a midwife. He fought bravely during the Peloponnesian War. He was married at least once and possibly twice. He had three sons. He was famously less than handsome and is said to have gone barefoot, even in battle. His total assets, including his house, were reportedly worth less than five minae, a modest sum when it is remembered that, after falling out of favour with the Sicilian tyrant Dionysius I, Plato was sold into slavery for twenty minae.

The charges against Socrates were made by three men: Meletus, Anytus and Lycon. Plato records the indictment as stating that “Socrates is guilty of corrupting the young and of not believing in the gods in whom the city believes, but in other new spiritual things.” The retired Athenian general Xenophon gives an almost identical report, saying that Socrates was guilty of “not believing in the gods worshipped by the state and of the introduction of new deities in their stead, and of corruption of the young”.

These kinds of suspicions had been in the air a long time. Aristophanes’s play Clouds made essentially the same accusations against Socrates almost a quarter-century before charges were officially laid.

Plato also records how one of Socrates’s friends approached the Delphic Oracle to ask whether anyone was wiser than Socrates. The Oracle’s answer was clear: among all men, Socrates was the wisest. Hearing this, Socrates was puzzled. Despite his respect for the Oracle, he found it difficult to believe he was wise. What exactly was the Oracle trying to say?

Thinking he might be able to disprove the Oracle’s prophecy, Socrates began searching for someone who was wiser than he was. In the centre of the city, surrounded by Athens’s merchants, craftsmen, poets and politicians, he tried to unravel the mystery of how anyone could think he was the wisest of all men.

This public mission to test the Oracle’s prophecy occupied Socrates for many years but brought him only poverty and hardship. It also helps explain why so many believed he was a bad influence on the young. As he questioned his fellow Athenians, he discovered that many who claimed to be wise were unable to give a coherent account of why they believed what they did. Socrates concluded that the Oracle might have been right after all: although other people thought they were wise when really they were not, he alone knew he was not wise. In this comparative sense, perhaps he was even the wisest of all men.

In carrying out his mission to test the Oracle’s pronouncement, Socrates must have annoyed many people who thought highly of themselves. In doing so, his jokes and arguments would have entertained those who gathered around to listen, including many younger members of Athens’s aristocracy. This was likely part of what led to charges being brought against him, since some of these same young men later helped overthrow the democracy that had served Athens so well for so long.

It was at this time that Socrates also began questioning the role of the Greek gods. Is an action right because some authority commands it? Or do authorities command actions because they are right? If the former, why would a god’s mere preference make something right? If the latter, the action would be right regardless of whether it was commanded. In either case, what need is there for a god?

The outrage these kinds of suggestions must have caused is not surprising. During their life-and-death struggle with Sparta, Socrates’s fellow Athenians would have believed there were two essential requirements for victory in wartime: the protection of the gods and the unwavering loyalty of a city’s young soldiers. To undermine such protections during times of war would have been widely recognised as a kind of sedition. When several followers of Socrates later turned out to be traitors, it is small wonder that some citizens began to ask whether Socrates himself might have had anti-democratic leanings.

In his defence, Socrates joked about the charges brought against him. He told the jury that compared to his accusers he was not a good public speaker, unless by a good speaker they meant someone who speaks the truth. He also told the jury that his accusers were wrong when they claimed he ran a school and charged tuition. Had he done so, he would not have been as poor as he was.

Socrates also reminded jury members that, rather than listening to the words of his accusers, they should focus instead on his deeds. After the war, the Spartans installed a puppet regime in Athens. The regime was commonly known as the Thirty Tyrants. When leaders of the new regime sent for Socrates and four other men and ordered them to arrest an innocent man so he could be put to death and his property confiscated, Socrates ignored the order. Members of the new government were in the habit of giving such orders, he told the jury, since they wanted to implicate as many people as possible in their crimes. Instead of following the order, Socrates simply went home.

This action could have led to Socrates’s execution had the Thirty Tyrants not been overthrown shortly afterwards. Jury members would also have known that it was the Spartan-backed government, and not the democratic Assembly, that passed a law forbidding Socrates from speaking to any man under thirty, fearing his influence over the young.

In his speech to the jury, Socrates made one other point, a point so familiar to his listeners that it was made almost in passing, easily allowing modern readers to overlook its importance.

The comment concerns events that took place during the famous Arginusae Trial, a trial held several years earlier, near the end of the war. In front of an Assembly of thousands, eight of Athens’s ten generals had been tried for dereliction of duty. It was at this trial that Socrates stood alone in opposition to the illegal act of trying the generals as a group, rather than trying them individually as was required by law.

The Battle of Arginusae had been the largest sea battle of the war. During the battle, a storm arose and many soldiers drowned. It was alleged that the generals could have done more to prevent their drowning. Upon hearing the charges, two of the generals deserted and were tried in absentia. Six others stood trial in person.

As one of the men chosen to preside over the trial, Socrates insisted that the Assembly had to follow the law:

I was the only member of the presiding committee to oppose your doing something contrary to the law, and I voted against it. The orators were ready to prosecute me and take me away, and your shouts were egging them on, but I thought I should run any risk on the side of law and justice rather than join you for fear of prison or death, when you were engaged in an unjust course.

These brief remarks hardly do justice to the courage it must have taken to stand up to such an impassioned Assembly. At the height of the war, when Athens was on the verge of capitulating to Sparta, eight of the city’s most important leaders were being tried for dereliction of duty. So high were the mob’s emotions that, after Socrates convinced several others to join him in standing up for the law, a second motion was made to the effect that Socrates and anyone who sided with him in opposing the will of the Assembly should be put to death along with the generals.

When this new motion was made, Socrates’s supporters vanished and Socrates was left alone to vote against an illegal action of the Assembly. In an age in which not all political leaders appreciate the importance of the rule of law, this is an event worth remembering.

Today we often think of the rule of law as simply rule through law rather than rule through force. This is helpful as far as it goes, but the rule of law is in fact much more.

Central to the idea of the rule of law is the requirement that even governments must follow the law. Under the rule of law, even those who have the power to make and change the law remain governed by it. Even those who have the power to enforce and interpret the law remain subject to it. It is this feature of the law, as much as the ballot box or the free press, that protects the ordinary citizen from rule by arbitrary power.

Understood in this way, the rule of law is much more than just the requirement that governments must act according to the law. Should a law be passed that gave a government the power to act whenever and however it wanted, such a government would not be bound by the law. To be genuine, rule of law must place substantial, non-trivial constraints on the use of state power, just as it does with the ordinary citizen. It requires not only that government authority be exercised in accordance with publicly disclosed and appropriately adopted procedures, but that genuine prohibitions exist against at least some types of state action. It is in this sense that rule of law differs from mere rule by law.

Put another way, rule of law requires all government actions to be justified in law. Governments operating under the rule of law have to acknowledge the difference between powers granted to them in law and powers they do not have. It is this insight that distinguishes constitutional democracy from mere mob rule.

With the benefit of hindsight, Socrates might rightly be described as the most law-abiding of the Athenians. Because of this, it is ironic that he was eventually put to death. After the later trial in which he was condemned to death, Plato and Xenophon both report Socrates as telling his friends it was still his duty to follow the law. It is hard to imagine a more law-abiding attitude.

Given the enormity of the stakes, the significance of Socrates’s decision to remain in prison has been recognised throughout history. Even so, there was nothing new about his insistence that he and his family had to accept the jury’s verdict. Since the invention of law itself, it has been understood that citizens need to follow the law if laws are to be effective. In contrast, it was at his earlier trial that Socrates forced his fellow Athenians take notice of the other half of this equation: that even law-makers need to be bound by the law, that even those who have the power to write and rewrite the law are not all-powerful. It is for this insight that Socrates especially deserves to be remembered.

Following his later trial, Socrates told his lifelong friend Crito that, because he had lived in a democracy all his life, he had been given every opportunity to attend the Assembly and persuade his fellow citizens to change the law, had he wanted to do so. Furthermore, if a person was unsuccessful in changing the law and if he believed the law to be more advantageous elsewhere, he was free to take his family and his possessions and leave Athens. Because he had done neither of these things, Socrates believed it would be wrong for him to oppose the law when it acted against his interests. In other words, laws in a democracy have much greater moral force than laws elsewhere.

It is this moral force that requires citizens in a democracy to uphold their side of a bargain, a bargain they have freely entered into with the state. At the same time, the state must also uphold its side of this agreement. It is not just the citizen who is required to abide by the law. In 406 BC, there was a requirement that each general be tried separately. If that is the law, Socrates told the Assembly, then even democratic governments must obey it.

In the century following his death, the influence Socrates had on his fellow Athenians was enormous. All of the traditional Hellenistic schools found inspiration in Socrates’s ideas. Plato’s Academy and Aristotle’s Lyceum both took seriously Socrates’s injunction that the unexamined life is not worth living, raising the idea of rational inquiry to new levels. The Sceptics took seriously the idea that wisdom comes from being aware of one’s own ignorance. The Epicureans advocated the idea that the best life is one devoted to simple pleasures. The Cynics advocated the idea that virtue comes from living in harmony with nature, and the Stoics, the idea that happiness comes from the rational modification of desire.

Much the same influence resulted from Socrates’s public insistence that even law-makers must follow the law. The century following the Arginusae Trial stands out as a period of tremendous legal turmoil. Troubled by the idea that even a democratic Assembly might act illegally, the Athenians appointed new officials to review their laws. The overriding issue was the relationship between the people, especially as they were represented by votes in the Assembly, and the law. The question was a simple one: Which is sovereign over the other? The law over the people? Or the people over the law? How could law-makers, those who have the power to write and rewrite the law, ever be bound by the law?

It was exactly this same question that the English political theorist John Locke raised in response to Thomas Hobbes’s defence of unlimited government power some two thousand years later. It is the same question that has to be addressed if law-makers are ever to be anything more than elected tyrants, anything more than opportunistic rulers who put their own interests ahead of the common good.

In the great sweep of history, it is Socrates’s later trial that has been remembered more often than his first. The injustice of putting Socrates to death stands in sharp contrast to his own law-abiding attitude. But it was Socrates’s decision to stand up to the mob during the trial of the generals that forced his fellow citizens to recognise the difference between democracies governed by the rule of law and those that are not. It was this earlier trial, together with Socrates’s stubborn insistence that even law-makers must be bound by the law, that forced Athens to begin to articulate the difference between constitutional democracy and mere mob rule. It is this distinction, embodied in a single man standing in front of an impassioned Assembly, for which Socrates most deserves to be remembered today. It is an insight democratic nations forget at their peril.