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Heraclitean Jurisprudence

A Democratic Reading of Heraclitus: The Philosophy of Opposition as a Framework for Law

Dec 11, 2009

In attempting to understand the rules of human social conduct, we find that the question of conduct is the problem of jurisprudence: what is the basis of human law? At the highest conceptual level, the question "what is law?" possesses two components: descriptive, and normative. To this end, we may subdivide jurisprudence into the following two questions; what is the character of law?; and, what should the character of law be? Descriptively speaking, human laws are born of human interaction, and normative rules of conduct arise from the analysis of human interaction. What then is the basis of human interaction? Human interactions obtain within and are governed by the conditions imposed on them by their operational environment, nature. What then is the human experience of nature?

When studying the question of human experience within the framework of ancient Greek philosophy we find a compelling account of reality in the works of Heraclitus. Heraclitus' writings are available only in the form of fragments, and although there is no definitive exposition of his philosophical system there is a standard reading of his fragments, and this reading runs as follows. "Thunderbolt steers all things"; that is, the natural world is the product of divine law. Being the product of divine law, nature is inherently just. "[J]ustice is strife," and strife is eternal flux. Eternal flux disallows the existence of truth conditions, and hence truth and knowledge are impossible to obtain. The only natural truth then is that truth and knowledge are impossible. Hence, in answer to the question "what is the human experience of nature?" Heraclitus responds that nature is flux and contradiction, and the human experience of nature is strife. In Heraclitus' universe, knowledge is impossible and wisdom consists in reconciling oneself to this truth.

Returning to our original question, "what is the basis of human law?", let us now apply the standard reading of Heraclitus towards the examination of a Heraclitean fragment that speaks on law. If we accept the one truth that is available to humans, that knowledge is impossible, then "[t]hose who speak with understanding must rely firmly on what is common to all as a city must rely on law [or, its law] and much more firmly. For all human laws are nourished by one law, the divine law." To understand this fragment we must ask: what is "common to all"? Strife is common to all. However, although everyone must experience strife their experiences of strife are different. Therefore we cannot rely on solitary experiences, and must "rely firmly on what is common to all." It is here that we find an entry point to the development of a Heraclitean argument for the basis of human law: i) divine laws give rise to nature; ii) nature is justice; iii) justice is strife; iv) all humans must experience strife and struggle to exist, and struggle to understand how to exist; v) knowledge is impossible, but we may know this one thing, and knowing this one thing we recognize that we must rely on what is common; vi) strife is what is common; vii) by relying on, and struggling to make sense of what is common humans can break the fetters of personal experience and thus develop right thinking; viii) because right thinking relies firmly on what is common it aggregates what is common about the human experience of strife; ix) strife is born of divine law; x) therefore right thinking is the best approximation available to humans of divine law and may be used to develop divinely informed human legal laws. In this way, as Heraclitus claims, "all human laws are nourished by one law, the divine law."

This paper will examine the argument outlined above, and defend the position that the principles of Heraclitus support the claim that the basis of human law is divine law. Divine laws shape the natural conditions of human experience, and by reconciling themselves to the fact that nature is strife while also relying on what is common among their various experiences of strife, humans may distill an improved understanding of nature by harmonizing their various and opposing experiences. Stated normatively: human law should be a distillation of divine law. To defend this position, we will begin first with a description of the term law, and an analysis of the concept "what is common" as it applies to the works of Heraclitus. Following this, the philosophical system of Heraclitus will be analyzed, and that analysis will be used to generate an argument from Heraclitean principles for basing human law on natural law (that is, on divine law).

As regards the term "law," in our current context we find it has two distinct uses: divine law and human law. In the works of Heraclitus the phrase "divine law" is tantamount to nature, and refers to the rules of the natural world that all natural objects must adhere to. Divine law exists and operates independently of humans and human consciousness. In contrast to all-encompassing divine law, the phrase "human law" describes a human concept that obtains only in the minds of humans, and refers to a conceptual body of principles and rules that are concerned with human conduct. Human laws are not knowledge per se, but consist only of conditions that humans create and impose on themselves and that they are compelled to obey only by the fact of their living within some society. As regards compulsion, apprehension of the manner in which a person's environment functions is requisite for the successful continuation of that person's existence within that environment. Such apprehension permits a person to develop appropriate responses to the conditions imposed on them by their environment, and it is for this reason that human legal rules are referred to as "laws."

Just as the term "law" possesses multiple, distinct meanings, so must we distinguish how it is that the phrase "common" is used in the works of Heraclitus. Again, we find two distinct uses: common experience and common opinion. As noted above, common experience is strife. Strife is not common in that we each have the exact same strife in our lives, but rather strife is common in that we all have strife of some sort in our lives. Separately, we have the notion of common opinion, which Heraclitus uses to refer to the beliefs and belief systems of what he perceived to be the commonly unwise masses, who do not recognize the basic principles of the Heraclitean logos -- flux, contradiction, and the harmony of the opposites. For although the logos is common and "holds always ... humans always prove unable to understand it." What is important here is the fact that strife and human nature are both common, and thus all humans possess the potential to develop an understanding of the logos. Potential however speaks nothing of extant ability, and "although the logos is common, most people live as if they had their own private understanding," and as a result of this Heraclitus believes that the most common opinions are also the most ignorant.

Working from the above definitions of human law and common experience we may now apply the principles of Heraclitus in developing an argument for the basis of human law. Our first task is to uncover what Heraclitus believes to be important. In this regard, we find he claims that "[r]ight thinking is the greatest excellence, and wisdom is to speak the truth and act in accordance with nature, while paying attention to it." The goal then is right thinking, and to obtain right wisdom it is necessary to "act in accordance with nature." In order to "act in accordance with nature," "it is necessary to follow what is common. But although the logos is common, most people live as if they had their own private understanding." The problem of private understanding is the problem of common opinion, which must be avoided. Hence, to achieve the goal of right thought and transcend common opinion and individual irrationalism, we "must rely firmly on what is common to all."

What is "common to all"? "It is necessary to know that war is common and justice is strife and that all things happen in accordance with strife and necessity." "Justice is strife" and in strife "[w]hat is opposed brings together; the finest harmony ... is composed of things at variance, and everything comes to be in accordance with strife." Harmony arises within individual doublets of opposing properties, and by extension the superset of all such doublets is internally harmonious. In this way "out of all things there comes a unity, and out of a unity all things"; all arises from and exists harmoniously by the one logos.

Although it is true that all things arise from the one logos, the human experience of the one logos consists of what they perceive to be different elements; nature in some sense separates itself when presenting itself through human experience. At the level of human ideas then, unification arises from the congregation of individuals and the comparison of individual ideas. When humans combine and compare ideas they begin to move beyond individual intellection, and to enter a realm of ideas that no single person could experience, achieve, or create by the means of a single human life.

What is the nature of this realm of ideas? Just as the logos is a realm of flux so are its various aspects realms of flux, and accordingly the realm of human ideas is also a realm of competing elements in eternal flux. Because the realm of combined human ideas lacks a totalizing order it may appear inconsistent and arbitrary, however this is not a weakness, this is its strength; "[t]he most beautiful arrangement is a pile of things poured out at random." In considering the random arrangement obtained by pouring out human ideas, we see that such an arrangement offers nothing less than a method by which humans may transcend the natural limitations of individual experiences and individual beliefs.

This arrangement -- the realm of combined ideas -- permits as many individuals as possible to congregate, and to discuss their opposing ideas, and to subsequently recognize and codify what is common. By codifying what is common humans may develop a set of rules to govern their conduct in such a way that those rules are beneficial to all who agree with the codification. Although such rules are not justified or true beliefs they are common beliefs, and in this way humanity "though at variance with itself, it agrees with itself." Therefore from variance comes harmony, from harmony comes rules of conduct, and in this way living in accord with the eternal flux permits and supports the democratic development of human legal laws.

Here follows a formal exposition of the argument defined above; the Heraclitean argument for the basis of human law:

Argument A: Strife necessitates the development of understanding

  1. Existence is strife
  2. Because existence is strife all humans must struggle in order to exist and to live
  3. To succeed in their struggle to live humans must be able to operate according to the rules of survival in their operational environment
  4. Therefore, to live humans must obtain an understanding of their operational environment

Argument B: The best understanding arises from harmonizing opposite ideas

  1. The operational environment of humans is nature
  2. The source of nature is divine law
  3. Divine law qua nature dictates that harmony is born of opposites
  4. By combining and discussing their opposing observations and ideas about nature humans can discover and extract those aspects that are harmonious, and in this way humans can come to understand what features of nature are common to all humanity
  5. By understanding what is common to all humanity, humans will obtain a better understanding of nature than they could have individually (furthermore, as noted in premise A.4: humans are compelled to obtain an understanding of their operational environment in order to live; and combining A.4 with B.4 and B.5, we arrive at the conclusion that ...)
  6. Hence, to obtain the best chance of living, humans must obtain the best understanding of nature, and therefore it is in the best interest of humans to combine as many ideas as possible

Argument C: The harmony of opposite ideas is the project of human law

  1. To combine as many ideas as possible, humans must consult as many people as possible
  2. To promote the consultation of as many people as possible, humans need to maintain a social environment that supports as many people as possible in their struggle to live
  3. Therefore, in order to succeed in their individual struggles to live by understanding nature as best as they can, humans must first pursue the creation of a human social environment that permits as many people as possible to live successfully
  4. To achieve this, humans must understand and define rules of survival for such a social environment
  5. This pursuit is the project of human legal rules, that is to say, human law

When applying the philosophical principles of Heraclitus towards an understanding of human law, we find that all of existence is an extension of the one logos, and accordingly to understand human law we must first understand divine law. Divine law gives rise to nature, and nature therefore is justice, and "justice is strife." Because nature is strife all humans must struggle to exist and to understand how to exist. Strife is eternal flux, and flux does not permit the existence of truth conditions and therefore truth and knowledge are impossible for humans to obtain. It is however possible to know this one thing: that truth and knowledge are impossible for humans to obtain. Wise humans accept and understand this one truth and thus wise humans choose to follow what is common -- strife. By following what is common, humans may then use their diverse and common experiences with strife to inform their understanding of nature and develop right thinking.

Though right thinking can never be true, it accords with divine law better than any other mode of thinking and is therefore the best approximation available to humans of divine law. Doing our best to approximate divine law facilitates creation and maintenance of the best possible social environment, and this in turn contributes to the advancement of right thinking for all.

In summary, right thinking arises from and consists in the harmony of opposing ideas, and it is this that wise humans should use as a basis for human law.

Part of the series: UWO