Article by Ferdinand Fairfax Stone
Plato in The Laws remarked that in the formation of a code of laws for his ideal city,
there will be a host of omissions in the different departments of our present legislation; that simply is not to be helped. Not but what we shall do all we can to sketch the outlines of the more considerable departments as well as of the whole system. But you [friends and preservers of law] will have to fill up this outline and must be told what your aim in doing so is to be.
Morrow, in commenting upon this passage, indicates that for Plato the competent legislator should have a "rational grasp of the end to which law, if it is to be right law, must be directed, and must know also the proper means of accomplishing this end through appropriate prescriptions." According to Plato this "rational grasp" consists in virtue, which has four parts: valor, purity, justice, and wisdom. To be certain that the gaps or omissions in the code of laws be filled with "right law," the legislators and curators of the laws must be men imbued with these ideals. Hence, for Plato great emphasis was to be laid upon the education of these men in right reason and virtue.
Morrow also points out that legislation for Plato was not the work of reason alone; the facts of experience and the lessons of history were relevant for the legislator. Thus, Plato suggested that those who have regular experience in the laws would become aware in practice of gaps and omissions and would annually provide regulations and amendments until a satisfactory rule had been reached. After a sufficient span of experimentation and experience (Plato suggested a ten year cycle of sacrifices and festal dances as a suitable interval), the various magistrates who applied the law, together with the original legislator if he be alive, would report these omissions to the curators of laws and attempt amendments until the provisions would be brought to perfection, at which time they would be declared and enforced along with the original legislation.
Plato in The Republic considered that it would be foolish to legislate on certain matters that rest on habit rather than regulation, for example, "how the young should be silent in the presence of their elders, give up their seats to them, and take dutiful care of their parents; not to mention details of personal appearance, such as the way their hair is cut and the clothes and shoes they wear." On these matters, the law is properly silent, since such habits "cannot be established or kept up by written legislation." However, Plato did recognize the "unwritten law" or "law of our forefathers," which traditions (custom and usage) were the "rivets of society," the "mortices of a constitution," the "connecting links between all the enactments already reduced to writing and preserved by it, and those yet to be recorded, a true corpus of ancestral and primitive tradition"; but Plato said that these traditions should "neither be designated laws nor left unformulated."
About the Author
Ferdinand Fairfax Stone. W.R. Irby Professor of Law; Director, The Institute of Comparative Law, Tulane University; O.B.E.; B.A. 1930, M.A. 1931, Ohio State University; B.A. 1933, B.C.L. 1934 (Oxon.); J.S.D. 1936, Yale University.
Citation
53 Tul. L. Rev. 93 (1978)