The Evolution of Law in Epicurus and Nietzsche

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    I recently had the pleasure of reading the highly-recommended book by Nietzsche, The Antichrist. Many of its paragraphs merely served to add depth and detail to some of the things I had previously come to understand from reading his notes in Will to Power and other sources, like Zarathustra. Other paragraphs offered new insights either because of the way in which they were passionately and emphatically stated, or by virtue of their content. Paragraph 57 is one of the latter cases and caught my eye because usually, when Nietzsche discusses the origins of laws and mores, he employs a cynical tone and seeks the ulterior motives of the proponents. Here, he takes on the anthropologist’s tone that we find in Lucretius and Epicurus, and it might be interesting to compare how he views the primitive origins of moral and legal codes versus how the Epicureans viewed them.


    In Nietzsche, the time when the laws are written down indicates a time when rules and contracts are standardized and experimentation is no longer encouraged as a result of certain legal precedents and practices becoming solidified in tradition. There are conservative and liberal interpretations of this process: to some–who are privileged by the existing laws–this creates a mythical “golden era” during which the population developed the best means to rule itself. To others, this imposes limits on how creative legislators allow themselves to be in adapting the legal code to new circumstances and keeping it relevant. Nietzsche, who is a staunch defendant of a type of aristocracy, supports the first interpretation, but nonetheless sympathizes with the second one.


    He then goes on to justify the caste system, which does not concern us for the purposes of this essay. I mainly wish to note that, against the conservative analysis we find in Nietzsche–who seeks to remind us of the original advantages that certified the ancient laws–we can posit the case for adaptability, progress and evolution of the legal code according to mutual advantage in the ancient Epicureans–who advocate for a fluid legal system that allows for perpetual processes of experimentation and adaptation.


    Quote

    Among the things held to be just by law, whatever is proved to be of advantage in men’s dealings has the stamp of justice, whether or not it be the same for all; but if a man makes a law and it does not prove to be mutually advantageous, then this is no longer just. And if what is mutually advantageous varies and only for a time corresponds to our concept of justice, nevertheless for that time it is just for those who do not trouble themselves about empty words, but look simply at the facts.


    Where without any change in circumstances the things held to be just by law are seen not to correspond with the concept of justice in actual practice, such laws are not really just; but wherever the laws have ceased to be advantageous because of a change in circumstances, in that case the laws were for that time just when they were advantageous for the mutual dealings of the citizens, and subsequently ceased to be just when they were no longer advantageous.


    Epicurus’ Principal Doctrines 37-38


    Notice that, first and foremost, it is clear that men create the laws and that men have, at any point, the power to change them. Epicureans never allow for a “holy lie” to even plant its roots in the soil of philosophy. While Epicurean doctrines seem to allow for an aristocratic code (things of advantage may or may not be “the same for all”), we also find in the Epicurean sources a lack of emphasis on the priorities of the ruling class, and instead an egalitarian, anarchic, and–most importantly–pragmatic focus on mutual benefit.


    In Book 5 of On the Nature of Things, Lucretius mentions how “neighbors began to form mutual alliances, wishing neither to do nor to suffer violence among themselves“, echoing again the indication that Epicureans believed contractarianism to be the earliest type of law.

    "Please always remember my doctrines!" - Epicurus' last words