The 2024 Isaiah Berlin Lectures

'Lycurgus to Moses: Thinking through Lawgivers in Legal and Political Philosophy'

Professor Melissa Lane will deliver the Isaiah Berlin Lectures in Michaelmas Term 2024. Professor Lane is Class of 1943 Professor of Politics at Princeton University.  Her lectures will take place on the following Tuesdays at 5pm: 29th October, 5 November, 12 November, 19 November, 26 November and 3 December. The first lecture will be held at St Luke's Chapel and lectures two to six will be held in the Philosophy Lecture Room, Radcliffe Humanities.

Abstract

Why and how have lawgivers figured in legal and political philosophy, both in history and in theory? Are lawgivers necessary for the emergence of law as a social practice, and if not, what roles have they played in the shaping and promulgating of bodies of law for particular societies?  How have lawgivers deployed different means of legal transmission, such as orality and writing, been deployed to shape civic culture and values? What does it mean to debate legal questions in light of the purported intentions of a lawgiver? Why have so many political theorists and legal philosophers felt the need to appeal theoretically to the figure of a lawgiver or legislator in their own work? And is legislation in fact the core political activity?  These questions can be asked in multiple registers, both historical and theoretical, and across manifold historical contexts. These lectures weave together the roles of lawgivers in archaic and early classical Greece, including both historical sources and the ways in which Greek authors themselves constructed those figures; they also extend into the early Christian era, during which Moses was explicitly compared by Jewish authors, writing in Greek, to the panoply of Greek lawgivers such as the Spartan Lycurgus (the most iconic, though not the earliest, Greek lawgiver). That arc—from Lycurgus in seventh-century Sparta, to Moses as conceived by these authors in the early Common Era—would feed into a long trajectory of invocations of lawgivers made by authors such as Rousseau and Nietzsche. Putting the history of ancient Greek lawgivers (part of a larger legacy of Greek law) in dialogue with its reception in the history of political thought, and with questions in legal theory and philosophy about promulgation, purpose, and interpretation, these six Isaiah Berlin Lectures call attention to manifold ways in which the figure of the lawgiver inflects both the history and the practice of legal and political philosophy.

Lectures

29 Oct:  Genealogies of law and lawgivers from Zaleucus to Hart

Why and how have lawgivers figured in legal and political philosophy, both in history and in theory? The question can be asked of the contemporary legal philosopher Herbert Hart, who discussed a putative sovereign lawgiver dubbed ‘Rex’ as part of his critique of John Austin, before introducing his own genealogical reconstruction of the origin of law. Yet it can also be asked of political theorists such as Jean-Jacques Rousseau, who denied that the ‘great Legislator’ necessary for the institution of a social contract should be sovereign at all. And it can be asked of authors who wrote in ancient Greek, whose ideas about the nature of law and politics were formulated both in practice and in philosophical theorising through appeal to such figures: from classical accounts of Zaleucus (believed to be the first Greek lawgiver) and Lycurgus (the most influential), to the discussion of Moses in comparison to Greek lawgivers by post-classical authors Philo and Josephus (both writing in Greek). I argue that no more than in Hart’s genealogy, or Philip Pettit’s recent reworking thereof, did the ancient Greeks generally understand lawgivers to have been necessary for law to come into being as a social institution. Rather, Greek lawgivers can be construed as having served as embodied versions of Hart’s ‘rules of recognition’, making identifiable the relevance and applicability of a particular set of laws to a particular community. Unlike Hart, however, the Greek lawgivers were also construed as having centered the moral purpose of law: each singular lawgiver was attributed with a particular telos or purpose unifying the body of laws that they promulgated. The next lecture explores the role of the telos of the lawgiver.

5 Nov:   Functions of lawgivers from Solon to Fuller

While ancient Greek lawgivers can be construed as embodied versions of Hart’s ‘rules of recognition’, their role went beyond that of identifying the authoritativeness of a set of laws. The most intuitive way to construe a set of laws as having an ethical purpose or telos is to construe them as having been composed by a lawgiver (as opposed to simply evolving piecemeal over time). This helps to explain the appeal to the lawgiver in the legal philosophy of Lon Fuller, who championed a purposive interpretation of the nature of law. It also helps to explain the appeal to the lawgiver Solon by his Athenian contemporaries and their descendants. I argue that Solon as a lawgiver, a role which he coupled with that of poet, embodied both the function of identifying the laws of the Athenian community and simultaneously their ethical telos. To be an Athenian was to accept the laws of Solon—yet the questions of ratification and legitimacy look different when conceived through the ancient Greek lawgiver lens, in which the ‘laws of Solon’ did not count as such in virtue of having been passed by the assembly or any other collective lawmaking institution.

12 Nov: The lawgiver's point of view in Plato and Aristotle

I argued in the preceding lecture that the making of new laws was not the key political function for ancient Athenians or their peers elsewhere in Greece—since a good polity would be shaped by the laws given by a great lawgiver, which could be modified by later citizens but should for civic flourishing be broadly preserved. While citizens in classical Athens often spoke about the role of the lawgiver, they did so primarily as interpreters: thinking their way into what the lawgiver intended, and seeking to act so as to sustain that telos. Their interpretative stance—which resonates in significant ways with that of modern legal philosopher Ronald Dworkin—in turn became central to the political philosophy of both Plato and Aristotle. Plato writes from the standpoint of what I have elsewhere called ‘discursive legislation’ from an early point in both the Republic and the Laws, while Aristotle frames his inquiry in in both the Nicomachean Ethics and the Politics in terms of what the good lawgiver would need to know and do. In this lecture, I evaluate the significance and distinctiveness of philosophising about politics from the standpoint of the lawgiver in these two ancient Greek philosophers.  I argue that the figure of the lawgiver, possessed of a techne of lawgiving, helped both Plato and Aristotle to navigate the nomos-phusis debate of their predecessors (as to whether laws are artificial or natural), and likewise, can help navigate later debates between positivism and natural law.

19 Nov:  Written laws? Ethical education in Plutarch's Lycurgus and related debates

While the previous lecture explored the framing of two major Platonic dialogues as projects of discursive legislation, this lecture turns to Plato’s meditations on the relationship between writing and law and their afterlife. I focus especially on the figure of the legendary Spartan lawgiver Lycurgus, who would be framed in a biography composed by Plutarch (a so-called middle Platonist) as having prohibited the writing down of his laws. Plutarch was intervening in an ongoing debate, articulated by Plato but also revolving around the evaluation of Lycurgan Sparta, about how the telos of a constitution could be best inculcated in its citizens: whether by using written laws, or by relying on unwritten laws that are customary and engrained through practices. Issues of flexibility, precision, memory and habituation were all at stake. Indeed, this debate was in antiquity framed not only in Platonic terms, but also in Hebraic ones, as I explain by reading Plutarch against the backdrop of Alexandrian Jewish texts. I draw implications for debates about how best to inculcate ethical values in education in subsequent generations, including our own.

26 Nov:  Moses and Greek lawgivers in Philo, Josephus and Rousseau

Emerging from the Greek-speaking Jewish community discussed in the previous lecture, Philo of Alexandria would argue (in Greek) that the act of writing was key to the extraordinary success of ethical habituation in Jewish law and thereby in Jewish history, both in terms of externally written law and the law that could on its basis be inscribed within the soul. The Jewish general Josephus, who would move from Jerusalem to Rome in the course of an eventful life navigating complex political tensions, would later similarly argue (also in Greek) that the Jewish people were superlatively successful  in their mode of studying and internalising their laws.  In contrast to those early rabbis who insisted that Moses was merely the transmitter of divinely ordained laws, these authors treated Moses as a lawgiver, but one who excelled his pagan Greek predecessors, in part, according to Philo, by combining the roles of priest, prophet, king and lawgiver. These ancient comparisons of Moses to Greek lawgivers can shed light on early modern invocations of all of these figures, including Jean-Jacques Rousseau’s appeal to Moses, Lycurgus and others in formulating the theoretical role of his ‘great Legislator’. I argue that Rousseau’s invocation of this figure was in certain respects deeply faithful to ancient Greek understandings of their own lawgivers: figures who drew on their wisdom to shape bodies of law that succeeded in impressing a civic identity on a given polity. While Rousseau’s invocation of a general will as necessary to make those laws legitimate drew on conceptual sources alien to the Greeks, I explore its similarities and differences to the acceptance of and identification with the laws by ancient Greek citizens that I discussed in earlier lectures.

3 Dec:    Are we all legislators now? Athens to Nietzsche

Calls to (re-)enact the role of the great lawgivers in the centuries between antiquity and today have been recurrent in many contexts, which this closing lecture can do no more than selectively survey. I begin by considering the Athenians’ institution of a new procedure for lawmaking in 403 BCE, which established a large body of ordinary citizens called nomothetai, inheriting the title of nomothetēs that had been accorded to Solon and Draco, but inverting their function: instead of framing the laws themselves as those individuals had done, the collective body instead vote on new laws proposed by others. Some eighty years later, Athens would witness Demetrius of Phalerum asserting himself as a new lawgiver, while in the meantime, both Plato and Aristotle had framed their philosophical reflections on politics in terms of the standpoint of the legislator, as argued in an earlier lecture. The effort to act as a lawgiver either in theory or in practice would be iterated throughout later centuries, in calls such as Friedrich Nietzsche’s for the emergence of ‘legislators of the future’, and in Richard Tuck’s observation that, as modern democratic theorists and citizens, ‘we are all legislators now’. By contrast, the very success attributed in antiquity to the great Greek lawgivers served to make subsequent lawgiving a far less salient part of ongoing political life than most accounts of ancient Greek politics have assumed. I close this series by reflecting on this paradox and its implications.