By Walter Borden, M.D. –
“If a law is unjust, a man is not only right to disobey it, he is obligated to do so.” Thomas Jefferson
“Character is destiny”, seemingly simple, yet enigmatic, written in the 5th century BCE by the Pre-Socratic philosopher Heraclitus. It is a powerful message for all peoples. Heraclitus is difficult to understand because his style is a combination of studied ambiguity.
Thales, the 5th century BCE pre-Socratic philosopher, introduced the concept laws of nature (physis), what we now call science. Anaximander, a student of Thales, observed: for every force in nature there is a reactive opposite force eventually leading to equilibrium. Applying this law in biological situations explains what is called homeostasis. Anaximander explained his observation by using the metaphor of a legal trial where opposing sides (adversaries or forces) argue their conflict before a judge and jury eventuating in conflict resolution, equilibrium and order. The ancient Greeks named this process after Hesiod’s Goddess of Justice, Dike, which became the Greek word for justice.
Nature’s laws are universal principles that existed before the appearance of homo sapiens and do not change over time. They are primordial. Gravity is a good example. Another way of putting it echoes the Declaration of Independence’s “self-evident truth that all men are created equal”. Self-evident is a secular way of saying divine. “History is prologue” (Shakespeare, The Tempest act 1 scene 1) and engraved on our National Archives is another example. It articulates the law of causation.
Heraclitus observed another law of nature involved universal constant change, as expressed in his metaphor: “all things flow, nothing abides—you can’t step in the same river twice”. Anaximander’s for every force there is a counter force to equilibrium prepared the way for Heraclitus’ conception of a basic harmony, in the midst of the ongoing flux, because while changes swirled and clashed, there was Logos, logical reasoning, like judge and jury attuning and creating harmony establishing order. There was an attunement of the clashing forces. Attunement is a fundamental, or natural, law process, triggered by clashing forces. In the midst of the constant change, Logos attunes and rules, not irrationality and chaos. Reason establishes order.
As Homo sapiens evolved an inherent need for connection in the service of survival led to larger and larger groups. Maintaining order was essential. That’s when Logos law emerged in the human community. To be effective, whether dealing with a dyad of female and male or of a city, state, nation or international community the law has to include fundamental moral elements or human’s underlying primitive savagery would rip society apart. It has to be more than an abstract system of laws to be Justice. Morality infuses life, transforming law into Justice. As Alexander Hamilton later said, “As in religion, the word kills, the spirit gives life”. Morality is an inevitable element of human nature that enables order, that enables civilization. Unfortunately, morality cannot be put into words, cannot be put in written form meaningfully. Morality cannot be legislated, cannot be textualized. This has presented quite a problem to our culture that relies on the written word. I have long wondered if this issue was integrated in legal education.
Beginning in the ninth-to-eighth century BCE, Greek population increased and the emergence of a cohesive underclass contributed to urbanization. People gravitated into towns for survival and protection but also increasingly for political functions, such as governance.
The family, clan, and tribe became subject to the community. This evolving urban center called “polis” also became an important economic unit, a center for trade and transactions as a civic entity. This polis (city-state) nurtured, educated, and served as the center and foundation of Hellenic community. Concentration of population entailed inevitable conflicts that carried seeds of destruction, but also the emergence of the natural law of Logos, attunement processes that enabled community living.
The developing polis nourished by the natural law of Logos and its process of attunement was the fertile soil where western democratic civilization took root. Although it was a time of class conflict, economic depressions, starvation, invasions, migrations, pestilence, and wars, Greece was emerging from her dark archaic past In the emergence we see the sprouting of philosophy, justice, science, and humanism—civilizing forces powered by the development of written language, music, poetry, art, and theatre. The eighth century is also the era of Homer and Hesiod—bards, who gave an echoing vibrant mythological history that sketched the character of civilization to be. Although some argue against Homeric authorship, the Iliad and the Odyssey are windows into centuries of history, bringing to life, through powerful, emotional poetic narrative, a people, their origins, their cultural heritage, and the principles that came to shape their society, and ours. From the mythic past Homer drew the first Greek theology, a primitive religion of Olympic gods—mirror images, flaws and all, of his epic mortal heroes. He addresses the basic issues of humankind’s origins, of creation, but also the history of our progress from primitive savagery to civilization. In the Iliad we see the origins of urban social organization in the early polis, with communal life centered in the agora, the open marketplace. Religion was practiced there, but also business, trade, and justice. Homer portrays a fundamental problem and the struggle to solve it through his poetic symbol of Achilles’ shield, which pictures two means of conflict resolution: On one side of the shield is a battle scene and on the other an agora, the communal marketplace where judges sit hearing the two sides of conflict before a jury of citizens. The shield symbolizes violent as against peaceful resolution, war versus a justice system.
Hesiod, the second oldest epic Greek poet, came from a rural background more plebeian than the aristocratic Homer. Where Homer’s epics are intended for the elite, Hesiod speaks to a different audience and from another perspective. He writes and sings about and to his roots, the common people. He puts into song and verses the story of the poor and the grinding toil of the farmer. He gives voice to the underclass, to those who are economically and socially beaten down and exploited by the nobility. The conflict between the haves and have-nots had gone on all during the evolution of the city-state, through wars, famines, and migrations; continuing with the merging of families, tribes, and clans as well as a relatively brief flirtation with monarchy; and the gradual assumption of power by a ruling aristocracy.
Around 700-625 BCE, possibly a hundred and fifty years before Solon, Hesiod produced Works and Days, his hymns on humanity and its ills, in which he brings Justice, which he terms “Just Retaliation,” down from Olympus in the form of a goddess called Dike. Hesiod saw the need for justice here on Earth, for the oppressed, and he expressed it in theological, mythic terms.
The hundred years or so after Hesiod were revolutionary, with an impact that created cultural waves that still carry us. During that century, Thales the 6th century BCE pre-Socratic philosopher, introduced the concept laws of nature, what we now call science. He said mythology is myth, stories to explain the unknown. Real understanding of the world comes from observation and logical reasoning to perceive the laws, or principles, by which nature is governed. Nature is ruled by laws
Thales suggested that under the seeming chaos of the likes of lightning, floods, thunder, tides, and drought there might be order reflecting knowable, fundamental laws of nature. His thinking had a profound impact on the development of physical science, but also on drama, the arts, medicine, psychology, law, and governance. Thales and Solon were colleagues. Solon applied Thales’ principles of scientific understanding to the polis (city-state). Rejecting tyranny, autocratic rule, mysticism and theocracy, Solon became the first political scientist and put government on a rational basis.
Thales’ student Anaximander observed in nature (physis) that every force provokes an opposite force tending towards equilibrium, a tendency towards a balancing of forces, and borrowing the symbol for justice from Hesiod, he called this principle dike. Anaximander also had a mathematical bent; he borrowed from Pythagoras as well as from Hesiod. Proportion and geometrical balance formed his perspective and can be seen in his application of mathematical principles to harmonics and reactions in nature. He introduced the concept of process, in which the balancing of competing and compensating forces involves interaction over time.
Anaximander’s audience was skeptical, so he used an explanation they could understand. Greek society at the time was litigious. Anaximander explained using a legal metaphor of a trial where opposing advocates(forces) argue before a judge and jury to resolve conflict. The end result is equilibrium, in nature, order in the courtroom.
It is not by chance that Anaximander used legal language and refers to trials, debating adversaries, and judges. Since the time of Homer and Hesiod, the Greek legal system developed in a symbiotic relationship with evolving science. Hesiod defined justice (dike) as retribution from the gods—an eye for an eye, so to speak (a notion not dissimilar from some modern versions). Yet buried in Homer is the idea that there is a more fundamental law than that of gods and that even they are not above it—not even Zeus.
In the more than three hundred years from Homer and Hesiod to Solon’s ascendancy, a weak monarchy gave way to a controlling powerful aristocracy, which in turn was challenged by a swelling and dissatisfied disenfranchised lower class. Class conflict worsened as society became more complicated, and it was compounded by the growth of a middle class of merchants, traders, and businessmen. Burdensome, autocratic, serving the wealthy, exploiting the underclasses, justice was an ongoing contentious theme. The result was a series of coups by tyrants and cycles of retaliatory violence.
A significant characteristic of Greek religion was its family structure. From Homer, we learn the Olympian family had its rules, and even Zeus had to abide by them. There was law more fundamental than the gods; there was a power above the gods—the basis of the rule of law. This is also the basis of what the later Romans balanced as a fundamental maxim in Lex Rex or the “the Law is King” rather than Rex Lex as “the King is the Law.” The best of Western Civilzation and all other wise global cultures have strived to maintain this principle, although it hasn’t been easy given the greed for power in certain flawed individuals whose toxic characters never develop beyond infantile selfishness.
As the Olympian family lost its religious influence, this power for some in the sixth century became nature and natural law—science. To others it became human law—justice. To others it became philosophy—the nature of knowledge. These natural philosophers were joined by insightful tragedians who realized that the Olympian family was the reflection of the human family, and that the gods were projections from the minds of mortals. These thinkers, the philosophers and tragic dramatists, saw through mythology to what it said about human nature; they looked into the mind, identifying underlying principles and patterns. It is their insights, later developed and joined with medicine that contributes to modern psychiatry.
Solon visited with Thales, which event became an interesting account immortalized by Plutarch. Solon became the first political scientist, separated church and state, drafted a constitution and legal code that articulated the rule of law, equality before the law, and instituted a public court system. I would like to emphasize that it was Solon who introduced the rule of law to governance. Solon’s constitution and legal code has been called The Athenian Magna Carta. Solon took Anaximander’s metaphor and made it real. One hundred years later, when Solon’s justice system was under threat, Aeschylus produced the Oresteia, which made democratic justice immortal.
Across the Aegean in Ephesus Heraclitus, another Milesian, extended laws of nature to include human nature, and observed a defect in the prevailing reliance on written law. He said there is at least a germ of fundamental morality in human nature. Indeed morality in the laws of human nature enabled homo sapiens to emerge from savagery and live in civilizedsociety. Without morality humans could not live together in any sizable community without tearing each other apart. To Heraclitus humankind was basically savage. Humane law, that is natural law, serves as a bulwark keeping underlying savagery at bay, of keeping the beast locked up, allowing civilization. Without morality the might is right principle would prevail (autocracy in one form or another) leading eventually to reversion to savagery. Modern technology compounds savagery. Statutory law does not include a moral element, nor can morality be legislated.
Heraclitus observed that another law of nature involved universal constant change, as expressed in his metaphor: “all things flow, nothing abides—you can’t step in the same river twice”. Anaximander’s for every force there is a counter force to equilibrium prepared the way for Heraclitus’ conception of a basic harmony, consistent and unchangeable in the midst of the ongoing flux, because while changes swirled and clashed, there was Logos, logical reasoning, like judge and jury, creating harmony establishing order. There was an attunement of the clashing forces. Attunement is a fundamental, or natural, law. In the midst of the constant change, Logos attunes and rules, not irrationality and chaos. Reason establishes order.
As homo sapiens evolved an inherent need for connection in the service of survival led to larger and larger groups. Maintaining order was essential. That’s when Logos law emerged in the human community. To be effective, whether dealing with a dyad of female and male or of a city, state, nation or international community the law has to include fundamental moral elements or human’s underlying savagery would rip society apart. It has to be more than an abstract system of laws to be Justice. Morality infuses life, transforming law into Justice. As Alexander Hamilton later said, “As in religion, the word kills, the spirit gives life”. Morality is an inevitable element of human nature that enables order, that enables civilization. Morality cannot be legislated, cannot be textualized. This presents quite a problem to our culture that relies on the written word. I have long wondered if morality was integrated in legal education.
This brings up a crucial question How are Law and Justice related? If we mean solely statutory law as the “textualists” believe, autocracy (power rules) prevails, and ends in savagery. History provides examples: Hitler gained power by manipulating German statutory law. He gained power legally, and in the process stripped away the civilizing cover letting loose the beast of humankind’s savage heart. I believe we have another example in an immediate past president who exploited weaknesses in textual laws to manipulate his way to wealth and power. Like the charismatic Hitler, he hid his own beast behind masterful image making, but one which only appeals to weak characters.
Our founding fathers relied on written law to legalize slavery, and later to ensconce it in the Dred Scott case. This points to the need for the moral and ethical principles of natural law. For Justice to be effective civilized society needs a combination of statutory law and natural law. Actually our constitution provides for this if the constitution is considered a living institution as originally intended, despite the claims of the “textualists”. We need a constitution with character. That means the steadfast recognition of the unwritten natural(moral) law, defined as the common sense of what’s right. Humans as property is not right, separating children from parents without cause is not right, gender, racial, ethnic and class discrimination is not right, and on and on and on. In other words, for real social justice common sense morality must be factored in to statutory law. This means that textualists would have to recognize commonsense morality despite its being unwritten. And it may be that if it were written, put into statutory words, it would quickly be exploited by the legal word masters. There is a long history of dictators and interest groups gaining power by exploiting the text of statutes.
The writers of our constitution did have common sense. I wish textualists would look at the text of the Declaration of Independence: “self-evident truth that all men are created equal”. Heraclitus defined Wisdom as telling the truth and following nature.
Psychiatry does not define (normal) character. It speaks through the DSM (Diagnostic and Statistical Method of Mental Disorders) which focuses on disorders that often afflict humans. That focus is not surprisingly blurred considering the complexity of mental functioning. It is, however, easier to look at prominent negative behaviors such as criminality if it appears to be an established, and apply the label anti-social character or personality. Actually there are many persons who achieve success by a pattern of criminality, and who hide behind clever image making and are never seen officially as “criminal”. There are persons who do not respect rules, including laws, indeed may get a sense of satisfaction by getting away with law breaking. If we add lack of empathy, the disrespect of the personhood of others, indeed may even get satisfaction by humiliating others, we have what might be called an anti-social, sadistic personality, and if we add material and narcissistic greed we have an accurate picture of the character assessment of our immediate past president, twice-impeached and indicted several times with likely more to come. He is a narcissistic, sadistic psychopath in the long experience of this psychiatrist – a licensed and board-certified professional for many decades. Sadly, this person mentioned here whose character is deeply flawed has not been held accountable for most of his selfish life – a deep stain on our nation. Why anyone would enable and protect him remains a mystery at present.
Character is destiny. What we experience in life is not due to fate or luck, but to how we live our values, and especially how consistently. Considering the medical and psychologic principle of “history is prologue”, character is the result of a complex stepwise-development under the influence of bio-psycho-social forces that become more pronounced in whichever direction we live our lives, for good or for bad, for constructive or destructive results in ourselves and those around us even if we do not always see the consequences.