The Kretan Minos (we here find it affirmed), son, companion, and pupil of Zeus, has learnt to establish laws of this divine type or natural rectitude: the proof of which is, that the ancient Kretan laws have for immemorial ages remained, and still do remain,[47] unchanged. But when Sokrates tries to determine, Wherein consists this Law-Type? What is it that the wise Lawgiver prescribes for the minds of the citizens — as the wise gymnastic trainer prescribes proper measure of nourishment and exercise for their bodies? — the question is left unanswered. Sokrates confesses with shame that he cannot answer it: and the dialogue ends in a blank. The reader — according to Plato’s manner — is to be piqued and shamed into the effort of meditating the question for himself.
[47] Plato, Minos, 319 B, 321 A.
The Minos was arranged by Aristophanes at first in a Trilogy along with the Leges.
An attempt to answer this question will be found in Plato’s Treatise De Legibus — in the projected Kretan colony, of which he there sketches the fundamental laws. Aristophanes of Byzantium very naturally placed this treatise as sequel to the Minos; second in the Trilogy of which the Minos was first.[48]
[48] I reserve for an [Appendix] some further remarks upon the genuineness of Hipparchus and Minos.
Explanations of the word Law — confusion in its meaning.
Whoever has followed the abstract of the Minos, which I have just given, will remark the different explanations of the word Law — both those which are disallowed, and that which is preferred, though left incomplete, by Sokrates. On this same subject, there are in many writers, modern as well an ancient, two distinct modes of confusion traceable — pointed out by eminent recent jurists, such as Mr. Bentham, Mr. Austin, and Mr. Maine. 1. Between Law as it is, and Law as it ought to be. 2. Between Laws Imperative, set by intelligent rulers, and enforced by penal sanction — and Laws signifying uniformities of fact expressed in general terms, such as the Law of Gravitation, Crystallisation, &c. — We can hardly say that in the dialogue Minos, Plato falls into the first of these two modes of confusion: for he expressly says that he only recognises the Ideal of Law, or Law as it ought to be (actual Laws everywhere being disallowed, except in so far as they conform thereunto). But he does fall into the second, when he identifies the Lawful with the Real or Existent. His Ideal stands in place of generalisations of fact.
There is also much confusion, if we compare the Minos with other dialogues; wherein Plato frequently talks of Laws as the laws and customs actually existing or imperative in any given state — Athens, Sparta, or elsewhere (Νόμος = τὰ νομιζόμενα, according to the first words in the Minos). For example, in the harangue which he supposes to be addressed to Sokrates in the Kriton, and which he invests with so impressive a character — the Laws of Athens are introduced as speakers: but according to the principles laid down in the Minos, three-fourths of the Laws of Athens could not be regarded as laws at all. If therefore we take Plato’s writings throughout, we shall not find that he is constant to one uniform sense of the word Law, or that he escapes the frequent confusion between Law as it actually exists and Law as it ought to be.[49]
[49] The first explanation of νόμος advanced by the Companion in reply to Sokrates (viz. Νόμος = τὰ νομιζόμενα, coincides substantially with the meaning of Νόμος βασιλεὺς in Pindar and Herodotus (see above, chap. viii.), who is an imaginary ruler, occupying a given region, and enforcing τὰ νομιζόμενα. It coincides also with the precept Νόμῳ πόλεως, as prescribed by the Pythian priestess to applicants who asked advice about the proper forms of religious worship (Xen. Mem. i. 3, 1); though this precept, when Cicero comes to report it (Legg. ii. 16, 40), appears divested of its simplicity, and over-clouded with the very confusion touched upon in my text. Aristotle does not keep clear of the confusion (compare Ethic. Nikom. i. 1, 1094, b. 16, and v. 5, 1130, b. 24). I shall revert again to the distinction between νόμος and φύσις, in touching on other Platonic dialogues. Cicero expressly declares (Legg. ii. 5, 11), conformably to what is said by the Platonic Sokrates in the Minos, that a bad law, however passed in regular form, is no law at all; and this might be well if he adhered consistently to the same phraseology, but he perpetually uses, in other places, the words Lex and Leges to signify laws actually in force at Rome, good or bad.
Mr. Bentham gives an explanation of Law or The Law, which coincides with Νόμος = τὰ νομιζόμενα. He says (Principles of Morals and Legislation, vol. ii. ch. 17, p. 257, ed. 1823), “Now Law, or The Law, taken indefinitely, is an abstract and collective term, which, when it means anything, can mean neither more nor less than the sum total of a number of individual laws taken together”.