AN APOLOGY FOR LAWYERS: SOCRATES AND THE ETHICS OF PERSUASION.

• Author: Clark, Sherman J.
• Position: Book review

APOLOGY OF SOCRATES, in SIX GREAT DIALOGUES: APOLOGY, CRITO, PHAEDO, PHAEDRUS, SYMPOSIUM, AND THE REPUBLIC. By Plato. Translated by Benjamin Jowett. New York: Charles Scribner & Co. 1871. (Tom Crawford ed., Dover Publications, Inc. 2007). Pp. v, 460. $5.

1. THE MODERN RELEVANCE OF AN ANCIENT SPEECH

   The work we know as Plato's Apology might better be called Socrates' Self-Defense. It is Plato's account of what Socrates said to the Athenian jurors when he, Socrates, was on trial for his life. The term [phrase omitted] (apologia) means not so much apology as "speech in defense" or even "explanation." But whatever we call it, I do not suggest that we read this speech for practical advice on criminal defense strategy--and not just because Socrates lost his case. Although Socrates does offer indirect illustrations of the art of persuasion, much of what he says makes little sense if seen merely as an effort to secure acquittal. This Review is not "practice tips from Plato." Rather, I suggest that contemporary lawyers and political actors should read the Apology to help us appreciate the risks and responsibilities that attend persuasive speech. In particular, Socrates can help us think better about not just what we persuade people to do but also what it is we do to people when we persuade.

   I recognize that a Review like this, in times like these, may seem to come from a particularly remote ivory tower. Not to put too fine a point on it, but American democracy is at risk under a troubling administration, hatred and xenophobia are on the rise, and severe long-term problems are going largely unaddressed. And I suggest that lawyers read Plato? Yes. Because one thing exacerbating these pressing problems is the way we speak to and argue with one another. I do not mean mere civility. The impact of speech is not primarily a consequence of the gentility with which it is delivered; and strong words sometimes suit. Nor do I mean simply honesty--although the truthfulness of what we say matters more than the politeness with which we say it.

   I hope here to highlight a set of concerns about the impact of our speech that are deeper than mere civility or even honesty. Following Socrates, I suggest that the way we speak, particularly when we seek to persuade, can play a role in forming the character of our listeners. Arguments are, in that sense, potentially constitutive. As Socrates describes and demonstrates, how we speak to people can influence how they think about themselves and their world. And that in turn can influence whether and how they thrive.

   An obvious contemporary case in point is how our current president may be nurturing hatred and xenophobia--engendering traits as harmful to the holders as to the larger community--through how he speaks and argues. But this is not just about Trump. All of us should consider how our arguments may influence our listeners. This will not be easy. One of the bracing lessons of the Apology is just how difficult and potentially intractable the problem is--how the occasions for our speech often make it difficult to attend to the constitutive consequences of what we say and how hard it is to figure out how to address those consequences. But if we listen carefully, Socrates can help.

   One obstacle to listening carefully is that Socrates spoke in Ancient Greek. There are of course numerous English translations available. (1) But some phrases have layers that matter; so some of what follows will require attention to the original Greek.

2. WITH GREAT PERSUASIVE POWER COMES GREAT RESPONSIBILITY

   The formal charges against Socrates were corrupting the youth and not believing in the right gods (APOLOGIA, p. 24b8-cl; Jowett Translation, p. 7)--serious charges potentially punishable by death. Socrates' speech, however, is not merely a defense against these specific charges. Rather, he offers an account of how he lived and why. In the process, he eschews some arguments and strategies that might have gotten him off the hook--or at least enabled him to escape death. Moreover, he risks angering the jurors with what Xenophon calls [phrase omitted] (megalegoria)--a term that literally means "big talk," but which connotes arrogance or even defiance. (2)

   Socrates' questionable strategy caused Xenophon to suggest that he must have wanted to die. (3) It is clear that Socrates was unafraid of death; but it sells him short to suggest his rhetorical strategy is merely one of carelessness or even defiance--as if he were merely tired of life and trying to annoy his adversaries one last time. He is up to more than that. But what? What is Socrates trying to do?

   Ultimately, what Socrates is doing is giving an account of his life. He may or may not want to be acquitted; but it is clear that he wants to be understood. He describes what he sees as his sacred mission to serve the city by acting as a so-called gadfly--reminding citizens to care for their souls more than for their material concerns or glory. (4) To this mission he has devoted his life. Nearing the end one way or another, he is making a statement about how he has lived and who he really was. To that end, it would make little sense to try to save his life in a way that would be inconsistent with how he had tried to live it.

   When it comes to persuasion, winning or losing is not everything--at least not to Socrates. What also matters is what one says and does in the process. And Socrates makes clear that he is concerned not just with what he says about and does to himself. He is also thinking about what his efforts at persuasion may do to the jurors of Athens--the citizens of the city he loves and whose soul he seeks to serve.

   Socrates highlights this concern in the very first sentence of his speech. His adversaries have just presented a (seemingly persuasive) case against him; and he begins:

   What you, O men of Athens, have experienced at the hands on my accusers I do not know. But for my own part I nearly forgot who I was--so persuasively they spoke. (5) At least three aspects of Socrates' word choice here are illuminating.

   First, the term translated here as "have experienced" is [phrase omitted](peponthate), a passive perfect form of the term [phrase omitted] (pasko), which means not just experience as in a sense impression but more like "suffered" or "endured." The word implies something that has been done to the jurors, not merely said to them. Socrates, here beginning his own speech, thus recognizes, and reminds us, that he will not merely be trying to convince the jurors to do something, he will be doing something to them.

   Second, the phrase translated here as "so persuasively they spoke" also means, in the Greek, "how they spoke persuasively" or "the way in which they spoke when speaking persuasively." This highlights something difficult to capture in translation--that what matters is not just how persuasive one is but also how one is persuasive.

   Third, the phrase translated here as "nearly forgot who I was" is sometimes rendered as "carried away"; (6) but that loses the import. The phrase is [phrase omitted] (emautou epelanthomain), which means, literally, "almost forgot myself." It thus highlights that what happens to people when they are persuaded has to do with who they know or think themselves to be. It is not merely cognitive but constitutive.

   That is why Socrates speaks as he does. He is not simply thinking about whether he will persuade the jurors rather than alienate them. He is thinking about whether he will elevate the jurors rather than debase them. He is worried not about what they might do to him but about what he is doing to them.

   Socrates further calls attention to this concern by expressing ironic surprise that his accusers have warned the jurors to be on their guard lest Socrates bamboozle them by being so clever in speaking. (7) The term he uses is [phrase omitted], which is the genitive of [phrase omitted], which does mean clever or terrific; but which also means fearsome or terrible. The root word is [phrase omitted] (deos), meaning fright or alarm. We see something like this in English, where the words terrible and terrific both come from the Latin word for fear. (8) The Greek [phrase omitted]; holds both meanings. Socrates claims that the jurors need not fear any excessive cleverness on his part. But we see that he is aware of a deeper sort of danger faced by those who are persuaded. This relates his speech in defense to his life and thus to the underlying charges against him. He has not corrupted the youth in the way his accusers claim; but he knows he might corrupt the jurors and others in a different and deeper way--if he were willing to do so.

   Socrates makes this awareness explicit. At the outset of his speech he says that he hopes he will be able to persuade the jurors "if that is the better thing both for you and for me." (9) The use of "if" here raises at least two questions: First, how could persuading the jury, and thus securing acquittal, not be better for him? While that question is fascinating and arguably central to an understanding of Socrates and his life and work, our focus for the moment is on a second question: What does it mean to ask if it would be better for the jurors?

   A partial answer is that the jurors might be better off if Socrates were to be acquitted--perhaps because he might then survive to further serve the city. A deeper answer, however, is that Socrates recognizes the impact he might have on the jurors through his persuasion--not just as a consequence of what he persuades them to do. He hopes to persuade the jurors, but only if his doing so will not harm them in an unacceptable way--only if it will not corrupt them in ways that matter. Socrates highlights this concern when he explains why he will not beg for sympathy. This is what many litigants evidently did and what the jurors had come to expect from those on trial; but Socrates rejects this approach. (10) And he tells the jurors why:

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