Among the assertions made about the Athenian Sophists, it is said by some commentators that they denied altogether any Just or Unjust by nature — that they recognised no Just or Unjust, except by law or convention.
To say that the Sophists (speaking of them collectively) either affirmed or denied anything, is, in my judgment, incorrect. Certain persons are alluded to by Plato (Theætêt. 172 B) as adopting partially the doctrine of Protagoras (Homo Mensura) and as denying altogether the Just by nature.
In another Platonic passage (Protagor. 337) which is also cited as contributing to prove that the Sophists denied τὸ δίκαιον φύσει — nothing at all is said about τὸ δίκαιον. Hippias the Sophist is there introduced as endeavouring to appease the angry feeling between Protagoras and Sokrates by reminding them, “I am of opinion that we all (i.e. men of literature and study) are kinsmen, friends, and fellow-citizens by nature though not by law: for law, the despot of mankind, carries many things by force, contrary to nature”. The remark is very appropriate from one who is trying to restore good feeling between literary disputants: and the cosmopolitan character of literature is now so familiar a theme, that I am surprised to find Heindorf (in his note) making it an occasion for throwing the usual censure upon the Sophist, because some of them distinguished Nature from the Laws, and despised the latter in comparison with the former.
Kalliklês here, in the Gorgias, maintains an opinion not only different from, but inconsistent with, the opinion alluded to above in the Theætêtus, 172 B. The persons noticed in the Theætêtus said — There is no Natural Justice: no Justice, except Justice by Law. Kalliklês says — There is a Natural Justice quite distinct from (and which he esteems more than) Justice by Law: he then explains what he believes Natural Justice to be — That the strong man should take what he pleases from the weak.
Though these two opinions are really inconsistent with each other, yet we see Plato in the Leges (x. 889 E, 890 A) alluding to them both as the same creed, held and defended by the same men; whom he denounces with extreme acrimony. Who they were, he does not name; he does not mention σοφισταί, but calls them ἀνδρῶν σοφῶν, ἰδιωτῶν τε καὶ ποιητῶν.
We see, in the third chapter of Sir H. S. Maine’s excellent work on Ancient Law, the meaning of these phrases — Natural Justice, Law of Nature. It designated or included “a set of legal principles entitled to supersede the existing laws, on the ground of intrinsic superiority”. It denoted an ideal condition of society, supposed to be much better than what actually prevailed. This at least seems to have been the meaning which began to attach to it in the time of Plato and Aristotle. What this ideal perfection of human society was, varied in the minds of different speakers. In each speaker’s mind the word and sentiment was much the same, though the objects to which it attached were often different. Empedokles proclaims in solemn and emphatic language that the Law of Nature peremptorily forbids us to kill any animal. (Aristot. Rhetor. i. 13, 1373 b. 15.) Plato makes out to his own satisfaction, that his Republic is thoroughly in harmony with the Law of Nature: and he insists especially on this harmony, in the very point which even the Platonic critics admit to be wrong — that is, in regard to the training of women and the relations of the sexes (Republic, v. 456 C, 466 D). We learn from Plato himself that the propositions of the Republic were thoroughly adverse to what other persons reverenced as the Law of Nature.
In the notes of Beck and Heindorf on Protagor. p. 337 we read, “Hippias præ cæteris Sophistis contempsit leges, iisque opposuit Naturam. Naturam legibus plures certé Sophistarum opposuisse, easque præ illâ contempsisse, multis veterum locis constat.” Now this allegation is more applicable to Plato than to the Sophists. Plato speaks with the most unmeasured contempt of existing communities and their laws: the scheme of his Republic, radically departing from them as it does, shows what he considered as required by the exigencies of human nature. Both the Stoics and the Epikureans extolled what they called the Law of Nature above any laws actually existing.
The other charge made against the Sophists (quite opposite, yet sometimes advanced by the same critics) is, that they recognised no Just by Nature, but only Just by Law: i.e. all the actual laws and customs considered as binding in each different community. This is what Plato ascribes to some persons (Sophists or not) in the Theætêtus, p. 172. But in this sense it is not exact to call Kalliklês (as Heindorf does, Protagor. p. 337) “germanus ille Sophistarum alumnus in Gorgià Callicles,” nor to affirm (with Schleiermacher, Einleit. zum Theætêt. p. 183) that Plato meant to refute Aristippus under the name of Kallikles, Aristippus maintaining that there was no Just by Nature, but only Just by Law or Convention.
[63] Plato, Gorgias, p. 483 B, p. 492 A. οἱ πολλοὶ, ἀποκρυπτόμενοι τὴν ἑαυτῶν ἀδυναμίαν, &c.
[64] Plato, Gorgias, p. 483 E.