Il basileus come nomos empsychos tra diritto naturale e diritto divino. Spunti platonici del concetto e sviluppi di età imperiale e tardo-antica

This handsome little volume is the extended version of a lecture Ilaria Ramelli gave at the occasion of the award of the Premio Internazionale di Cultura Classica Marcello Gigante. For that occasion, she selected a topic close to the theme of Gigante’s major work Nomos basileus (Naples, 1993, second edition): the idea that the ruler is law embodied or, as the Greeks put it, νόμος ἔμψυχος. Her aim is to show that the concept finds its origins in Plato, and not in Stoicism. The essay is rich in material and references, but I laid down the book with a feeling of disappointment, for several reasons. The Platonic origins of the idea have been pointed out before, for example by the Dutch scholar G. Aalders,¹ although R. pursues the idea in much greater detail. The tenacity with which she aims at making this point seems to distract her from wider, and, in my opinion, more interesting issues. There is, for example, no discussion or definition of divine and natural law, and it is quite unclear how “empsychos nomos” sits “between natural and divine law” as the title says. Also, there is no discussion of the political use that has been made of the formula nor of how philosophers dealt with the obvious ideological implications of making the king law embodied. Nor does she attempt to explain how the formula fits into political thought of the various periods she discusses. The question of Platonic origins, albeit worthwhile pursuing, eclipses all the rest: the discussion of the development into the imperial era and Late Antiquity, announced by the title, is reduced to an inventory of Platonic parallels.

The book opens with a discussion of how the concept of law changed under sophistic influence in the fifth century B.C. (pp. 13-26). To counteract sophistic relativism philosophers like Socrates and Plato anchored positive law in ethics, which in turn was based on metaphysics. Just as the sensible stands in a relation of mimesis to the intelligible, so is positive law an imitation of natural law (p. 26). A brief excursus (pp. 26-34) explores some of these themes in Aristotle and the Stoics. The next section (pp. 34-45) explains how the theory of embodied law is rooted in Plato’s thought. R. points in particular to Laws 713B f., where it is said that we should try to imitate the ideal governors of the age of Cronus and make “distribution by reason” law ( τὴν τοῦ νοῦ διανομὴν ἐπονομάζοντας νόμον). Law must be based on reason. As the intellect is the higher and divine part of the soul, R. argues, this grounds positive law in divine law (p. 38). She finds support for this convergence of divine, natural and positive law in Plato’s Seventh Letter (354ἐ, where he states that God is law for the wise, but lust for the unintelligent. As law is based on reason, the ruler has the task to educate his subjects, and not to force them to accept law (p. 45).

Although many of the connections R. establishes are clear and well-known, I found this account confusing. The main reason is that a very diffuse concept of “natural” and “divine” law is being used. First of all, I was unable to find a distinction between both, nor a precise discussion of how these categories are applicable to Plato. Secondly, her reading of the two Platonic passages seems imprecise. The passage from the Seventh Letter is interpreted as stating that laws decreed by the wise are of divine character (p. 41). Surely it means that wise men try to accord their actions with reason (or God). But that does not imply that the laws decreed by the wise are divine, nor that God himself is law or decrees laws: it grounds good positive laws in reason. That is also what is implied in the passage from the Laws. To call this “divine law” seems hasty and should be supported by a discussion of how this term is applicable to Plato. I was unable to figure out whether R. understands divine law as meaning “laws founded on the divine” or “the divine is law”. It is evident that these Platonic ideas can give rise to theories of divine and natural law, like those we encounter in Middle-Platonism and Stoicism, but that does not justify in itself the use of such categories for Plato.

It is against this background, R. argues, that the concept of “empsychos nomos” arose: just like Plato, the concept reconciles divine, natural and positive law. It is first encountered in a Neo-Pythagorean and Platonic context, not Stoic, a fact which for R. testifies to its origins. This idea is then pursued in a long discussion of Pseudo-Archytas, who was the first to use the term in his On Laws and Justice (pp. 48-89). He contrasts embodied law (the king) and positive laws, which are called “without soul”. As long as the king remains faithful to the law, he is a legitimate sovereign. In what is the best section in the book, R. clearly shows the presence of numerous Platonic ideas in the works attributed to Archytas, singling out in particular the stress on the educative role of the king.

This section calls for three comments. (1) Archytas’ contrast implies that (divine) laws precede the king: if he disobeys them, he is not a legitimate ruler anymore. This is not something found in Plato, where the point is not that there are independent divine laws, but that the ruler has to model his laws on divine reason. This seems something distinctively new that cannot be seen as the natural result of Plato’s speculations. (2) Some of R.’s arguments for a link between Plato and Archytas are questionable on a methodological level. On p. 84 she refers to a statement by Galen who links Plato and Pythagoras, and later Platonists who identified Pythagoras as a kind of forefather of Plato (see also p. 98). It has often been demonstrated that these ideas fit into an imperial intellectual context, when indeed this golden chain was generally accepted and also constructed.² Consequently, such statements are hardly evidence for a historical link between Plato and Pythagoras or Platonism and Pythagorism. (3) R. seems unable to make up her mind whether Pseudo-Archytas’ On Laws and Justice is authentic and fourth-century, or inauthentic and imperial. The former suits her point of a Platonic origin better and towards the end she seems to assume its authenticity (p. 89). Most scholars, referenced by her on pp. 48-54 accept, however, that the text is not by the historical Archytas.

R. then pursues her history of the idea with brief discussions of Philo and other Neo-Pythagorean authors (pp. 89-96), “eclectic stoics” like Seneca (pp. 96-102), and Middle-Platonists (pp. 102-111). Again her focus is on links with Plato, which rather truncates the discussion. Nothing is said, for example, on how Philo’s use of the term relates to his ideas about the Jewish Law. Cicero is oddly absent. It is wrongly stated that Dio Chrysostom uses the term in Or. 1.38, and the discussion of his orations is generally unsatisfactory: much more could be made of Dio’s concept of law in relation to the monarch. For one thing, Dio says at once that the monarch is above the law and has to obey it ( Or. 3.10 and 39). R. only refers to the former opinion.

The last section of the book discusses Themistius (pp. 111-131). R. discusses the passages where this fourth-century orator calls the emperor “law embodied” and she then links it to the assimilation of sovereign and God that is central to Byzantine political thought.³ A major part of the section is a discussion of a brief oration that she and E. Amato recently published and which she claims is authentic.⁴ Again her argument is that Themistius is essentially Platonic and that his ideas can be traced back to Plato. The further history of the concept in Late Antiquity is left unexplored.

R.’s discussion is seriously truncated by the fact that the only point she apparently wants to make is that the concept finds its origin in Plato (p. 131). One must concede that she does so in greater detail than any of her predecessors. But it goes at a serious price. No attempt it made to explain how it functions in political thought in the Roman Empire. Nor is there any discussion of how philosophers dealt with the obvious ideological content of the idea: making the emperor law embodied was a potentially dangerous idea (see Plutarch, Life of Alexander 52). Nor, on the other hand, does she explore possible links or influences of Stoicism. Stoic influence is briefly admitted (pp. 46-8) but rarely taken into account: R. even takes care to point out that the Stoics she discusses are “eclectic”. They are, indeed, just as are the Platonists of the Imperial Period she discusses. There are, for example, interesting Stoic echoes in the Plutarchean passages discussed on pp. 103-7, but these go unnoticed. In the end such selectiveness even imperils her wider point: one cannot simply assign an idea encountered in a philosopher of the imperial age to Plato without at least considering the wider contemporary context which he fits into. That context may very well explain why he uses that particular Platonic concept. Such a limited scope is what one expects of a paper delivered at a festive occasion or an article, but it is hardly satisfying in a book of 131 pages with a title that promises much more.

I regret that this review must be so negative. R. is the author of a prodigious amount of articles and works and evidently a scholar of great learning. Copious footnotes and references to numerous texts will make the book useful to those who want to explore the theme. But on this occasion she does not live up to the subject, which could have spurred an interesting exploration of how the relation between the ruler and law was conceived in Plato, Hellenistic and Roman philosophy.

[For a response to this review by Ilaria Ramelli, please see BMCR 2007.07.02.]

Notes

1. G. Aalders, ‘Nomos Empsychos’, in P. Steinmetz (ed), Politeia und Res Publica, Wiesbaden, 1969, pp. 315-29.

2. P. Donini, ‘Sokrates und sein Dämon im Platonismus des 1. und 2. Jahrhundert n. Chr.’, in M. Baltes e.a. (eds), Apuleius. De Deo Socratis, Darmstadt, 2004, pp. 142-61.

3. That statement rather lacks important nuance: see e.g. G. Dagron, Empereur et prêtre, Paris, 1996

4. ‘L’inedito Πρὸς βασιλέα di Temistio’, Byzantinische Zeitschrift 99 (2006), 1-67. Notwithstanding the learning displayed in this paper, the piece is unlikely be authentic. The style is hardly Themistian, and the description of the emperor as spreading the empire to the pillars of Heracles does not suit Theodosius, in whose days the empire still stretched to Spain. Moreover, although Themistius attributes divinity to the ruler, he never calls him “god” as does this new text. If the piece is Late Antique, a much better candidate would be Justinian, but this is not the place to pursue this question.