The Physis/Nomos Dichotomy:
Pre-Socratic views on natural vs conventional law



John Felber






Dave Stamos
AP/PHIL 2010
November 27 2014
There were notable pre-Socratic philosophers who discussed and postulated the existence of a natural law which exists alongside - and sometimes in contravention of - conventional laws. The nature (physis) and convention (nomos) dichotomy, in respects to legal or ethical matters, ultimately caused conflicts in the ancient world and continues to do so today. This paper will explain the difference between the two types of laws. It will then proceed to examine the beliefs espoused by two “natural philosophers,” namely Empedocles, and Democritus. Subsequently, this essay will review the beliefs held by two sophists, Hippias and Antiphon, on the same topic of natural vs conventional law. Finally, it will be argued - and evidence will be provided - that will show that Antiphon has the strongest position on the topic; that natural law is stronger than conventional law insofar as man’s nature and natural instincts are concerned in how they force action in certain situations. Before proceeding, it is important to note that whereas Empedocles and Democritus were “natural philosophers,” Hippias and Antiphon were sophists first, philosophers second. A distinction between the natural philosophers and sophists will become clear upon review of their arguments concerning the subject at hand.
	In order to fully appreciate the views held by these philosophers it is important to   discuss and explain terms applicable to this paper. The term “natural philosopher” is used to describe many of the pre-Socratics who were the first of their kind [philosophers] to look for natural explanations for common events occurring in nature; phenomena such as celestial bodies, the working of environmental structures and entities, etc. Previously, most phenomena of this sort were described to have been created or caused by and through supernatural divinities such as gods, goddesses or other otherworldly entities. Thus, it can also be argued that some pre-Socratics were also the first “natural scientists.” However, for this paper, Empedocles and Democritus will be discussed as philosophers and it will be their views on natural vs conventional law that will be focused on. Next, sophos is a term that means “wise.” Therefore, the term “sophists” can be understood as meaning “wise-ones.” The sophists did not focus on natural science as much as they did on rhetoric and on teaching the sons of wealthy Athenian families how to use persuasion with oration to become successful. Finally, “nature” (physis) is a term that represents any event/reaction/impulse that occurs naturally. An example of physis would be human instinct and any action taken to preserve one’s own life. In contrast, “convention” (nomos) is a term given to a human construct. Examples of human constructs or conventions include; varying forms of governments; the labelling of nations; or the notion that men are somehow better or more virtuous than women. With this in mind it is clear that natural law and conventional law can come into conflict. An example would be a starving homeless youth stealing a loaf of bread. Natural law dictates that unless the boy eats he will starve to death, while conventional law holds that stealing is illegal and that if the boy steals the loaf to satiate his hunger, that he should be prosecuted. This simple example of a conflict between natural and conventional law shows that natural law is the higher law. That while convention holds that the boy should face punishment for breaking the law, the natural law held a punishment (starvation and death), that was equal to or more severe than that of the conventional law. The philosophers discussed in this paper identify natural law as being the stronger, and some go as far as to claim that conventional law is a tyrant that should be adhered to as infrequently as possible. The textual references made in this paper will come from Robin Waterfield’s The First Philosophers: The Presocratics and the Sophists.
Empedocles claimed to know how everything came into being. He states, “But come, I will tell you of the source from which in the beginning / The sun and everything else which now we see became manifest…” (F5, 142). In this he steps away from the conventional story of creation as the Greeks knew it. From Chaos came Ouranos, and from him came a succession of gods and goddesses who ruled various parts and aspects of the world and the heavens. Empedocles was the first to, “come up with the theory of four elements-earth, air, water, fire.” (134). It is interesting to note that Empedocles was also the first to, “give these equal status and the first to develop the concept of an element-an irreducible, imperishable, underived primitive form of matter.” (135). He called these elements “roots.” With these roots Empedocles believed that there were two factors that acted in unison regarding earthly affairs and human matters. He called these two factors “love” and “strife.” If “love” is understood as the natural law, and strife as the “conventional law” a picture emerges that explains how he perceived, “Love’s tendency is to unify things, that of strife to separate them.” (135). Natural law holds that all people are born equal in respects to basic needs for survival such as food, shelter, and clothing. His reference to “love” can be seen as a time in which all people have their basic needs met and the result is that there is general peace and wellbeing in the world. On the other hand, strife, as seen as conventional law, is where people are not unified and do not have their basic needs met but are separated by a variety of hierarchal devices that allow a few to benefit at the expense of the many. Empedocles believed that there was a universal natural law in respect to ethics that no convention could alter.
	Democritus, known as an “early atomist” was part of a group that, “appear[ed] to have reached conclusion about the fundamental structure of the world which echoes our own in naming invisibly minute particles as the basic building blocks…” (165). In this Democritus steps away from the convention of the gods and goddesses and the creation story as known by the Greeks of that time. In respect to the senses he is a relativist and suggests that, “Sweet exists by convention, and so does bitter, warm, cold and colour, in reality there are atoms and void.” (F3, 176). In the arena of the senses, he provides that there are subjective truths only. Now, as an atomist, Democritus believed that everything was made of minute particles. Therefore, insofar as human beings are concerned, each living person is ultimately made up of the same substance. It follows that since humans beings are all made up of the same substance they are all equal on a base level. Thus, hierarchal devices are conventional and interfere with the natural law in which all people require certain basic fundamentals to perpetuate their existence. Due to this it is up to each person to follow the natural law to obtain what they need to survive.  A fragment that survives of Democritus stresses, “above all the good of the individual over the good of a state or group.” (170). Through this, Democritus underlines the importance of self-preservation as being the highest motivating factor in respect to instinct and natural law. Of course, Democritus acknowledges that some conventional laws are just when he says, “A man who is content, and undertakes actions which are just and legal, is happy asleep or awake, healthy and carefree. But a man who ignores justice…is distressed by the memory of his actions.” (F9, 191). This comment can be applied to both those higher and lower on a hierarchal scale. While justice and legality are not always mutually inclusive terms, they sometimes can be. However, according to Democritus, it is the individual’s difficulty in disobeying a natural law when that law comes into conflict with existing conventional laws that is a cause for concern. Natural laws must be followed to preserve the life or liberty of each individual person and these laws are immutable. A natural law is something which conventions cannot alter, they are universal, instinctive and therefore higher or stronger than conventional laws.
	The notion of natural law being stronger than conventional law becomes ever clearer when the work of Hippias of Elis is examined. Through his work, “Hippias shows himself to be an advocate of nature over convention, and he may have been the first to speak of ‘natural law’… which ha[s] a greater claim on our obedience than man made laws.” (251). Furthermore, he states that these laws are, “universal and unbreakable.” (251). Hippias asserts that conventional laws are useless and meaningless insofar as they often change to suit the needs of the ruling elite. In a transcript of a conversation between Socrates and Hippias, Hippias states, “how can anyone take the laws seriously or believe in them, when often the same people who establish them repeal them and change them?” (T5, 255). Hippias is seen to have elaborated on this in Plato’s Protagoras where he says, “convention is a tyrant over humankind and often constrains people to act contrary to nature.” (T4, 255). Hippias’ hostility to conventional law is evident and notable. Of course, reading these transcripts one could picture Hippias’ as a proponent of the idea that “might makes right.” This may or may not be entirely fair or accurate. However, the description of conventional law being useless and altogether inferior to natural law is quite dangerous and would prove to be problematic for the Athenian law courts. The appeal to natural law is, “emotively powerful, but legally dangerous, since it allows a defendant to claim that he was obeying a superior law in breaking a man-made one.” (251). The appeal to nature would become so commonplace that eventually the Athenian law courts had to ban any motion to the appeal to natural law as a legal defense.
	Antiphon is another sophist who elaborated on the differences between physis and nomos and, “in terms of fifth-century debate about nature and convention, he shows himself to be a champion of nature over law and convention.” (259). Antiphon believed that language must be used with caution insomuch as how things are labeled because, “we call people ‘Greeks’ or ‘foreigners’, when in fact all human beings are akin.” (258). He believed that, “there is nothing essential or natural to distinguish Greeks from foreigners, and that all such distinctions are matters of convention.” (259). Here Antiphon manages to provide a universal truth in respect to natural law, that all humans are people, and it is only human constructs or conventions that separate them into varying cultures, ethnicities and nationalities. Antiphon believed that conventional laws were divisive, that in many cases they contravened natural laws and that, “they are hostile to nature, which is to say they do us harm.” (259). Antiphon suggested that the only reason to follow conventional laws was to avoid punishment, but that otherwise people should follow natural laws first. His appeal to nature is such that, “If you are hungry, you have to eat, or you will die; the pain of hunger is nature’s way of telling you that something is wrong.” (259). His disdain for conventional law was great, as he believed that conventional law is what creates disunity and disharmony among different people. In respect to conventions Antiphon remarks, “those who live far away we neither know nor respect. This has led to our behaving like foreign savages towards one another, when by nature there is nothing at all in our constitutions to differentiate foreigners and Greeks.” (F17, 264). His remarks on justice are similar to those on conventions. He shows as much disdain for the notion of “justice” as he does for conventions, as justice [for him] is subjective. He states that:
Justice, therefore is conforming to the rules and regulations of the community…The way to gain maximum advantage for yourself from justice, then, is to treat the laws as important when other people are present, but when there is nobody else with you to value the demands of nature. For the laws’ demands are externally imposed, but those of nature are essential, and while agreement, not nature, has produced the laws’ demands, nature, not agreement has produced those of nature. So if your transgression of regulations escapes the notice of those who have made the agreement, you avoid both shame and punishment, but incur them if it doesn’t.
(F18, 264-65).
Antiphon suggests that men form into groups and make up laws (conventions) that suit their needs which might or might not be at the expense of other people. He says that since these man-made laws are not natural, that they can be broken without much detriment to oneself unless a person is caught in the act. He explains that if someone were to break man-made laws and not get caught, that the individual will go unpunished since there has been no authentic transgression against nature.
	Empedocles, Democritus, Hippias and Antiphon had ideas and notions on physis and nomos and the difference between natural and conventional laws. They concluded that natural law was the stronger. Through an examination of their views and positions on the subject, it is Antiphon who makes the strongest case for natural law over conventional law. Empedocles was rather vague when discussing the concepts of nature and convention when it came to laws and how human beings interact in response to them. His belief that “love” and “strife” are the motivating factors that force human action is too simplistic and does not take into account the needs of different peoples or cultural groups. The breadth of his focus was too narrow, and thus he fails to make as meaningful an impact on the subject as Antiphon who understood that people prioritize things differently and place different values on things outside of Greek culture. On the other hand, Democritus acknowledges that many things are subjective, such as values and perceptions. However, he was unwilling to take a staunch stance against conventional laws when compared to Antiphon. His lacklustre commitment to the superiority of natural law over conventional law might have stemmed from a fear of reprisal from the ruling elites. Though this is mere conjecture, the fact is that Antiphon had the courage to speak the truth in that there are conventions that categorize people into groups. This allows one group to take advantage of another group by creating an unnatural “us vs them” environment. Hippias’ views are stronger inasmuch as he admits that conventional laws should not be followed and that they are meaningless because the elites, or those who write the laws, are an obscure group who repeal and change them. Where Hippias falls short is that he is too radical. His belief that all conventional laws are meaningless is problematic in that some conventional laws and natural laws can exist in union with one another. For instance incest - regardless of his belief that it is not forbidden by natural law - goes against natural and conventional law. This is apparent in nature through the production of offspring with birth defects resulting from incestuous intercourse. Antiphon’s position is superior to Hippias’ because it is more moderate, sensible and as he [Antiphon] admits that it is sometimes good to follow conventional laws. Of all the philosophers discussed here, Antiphon’s position on - and case for - natural law being greater than conventional law is the strongest. He acknowledges that natural laws are universal and inherent for the survival of each human being. Therefore, he communicates that any conventional law that prohibits man from attaining what nature dictates he needs for survival is an aberration. Antiphon further comments on the mutability of conventional laws and the immutability inherent in natural laws. He concludes that since conventional laws change to suit the needs of the elite, that these laws should not be followed unless witnesses are present, and that to do so is only good in order to avoid punishment. The strength of Antiphon’s position is most strongly evidenced through a vast history of instances where conventional laws have been ignored by those who followed a higher ethos. For instance, it is known that many German citizens hid and protected Jewish people who would otherwise have been persecuted and executed under Hitler’s Nazi regime. These individuals rejected the conventional laws set by the state and they often did so at their own peril.
	This paper has explained the physis/nomos dichotomy as it was understood by four pre-Socratic philosophers in respects to natural and conventional law. Proceeding in a revelatory manner, the ideas of Empedocles, Democritus, Hippias and Antiphon were illustrated as they related to the topic at hand. Even upon prima facie review of the available transcripts and fragments still in existence, it is plain to see that they all viewed natural law as having a greater compulsion on human action than any conventional law. While none of their ideas are without merit, it is Antiphon who has the strongest case as a proponent of the superiority of physis over nomos in respect to the laws that govern the human animal and mankind as a whole.









Works Cited
Waterfield, Robin. The First Philosophers: The Presocratics and Sophists. Oxford: Oxford UP, 2000. Print.