Brian Bridson

1

1

Plato’s Concept of the Incurables in the Laws

In Book IX of the Laws, Plato begins to discuss the matter of punishment in his hypothetical Cretan city. Immediately Plato presents the reader with two different ways by which we can understand what punishment is and how it works: it serves to educate the citizenry in virtue, as well as to ‘cure’ those whose natures are diseased. But Plato relatively early in this book claims that while the law should strive to cure those that it can, there are those who are incurable, and these people must be sentenced to death. In this paper I will be focusing on Plato’s concept of the incurable, as it is laid out in the Laws, to stress the problems of this concept, due in no small part to Plato’s own vagueness regarding the enunciation of the qualifications of such a designation. I will begin this paper by first offering an analysis of Book IX so that I may clearly establish Plato’s stance regarding the use of punishment for those whose souls are deemed incurable. I will then offer readings by Stalley, Shuchman, Morrow, and Saunders regarding what they feel Plato’s attitude regarding punishment is, all while arguing my own position regarding Plato’s use of punishment of the incurable. At 853b-854b in the Laws, Plato tells us that he feels a sense of shame for having to establish any legislation for the punishment of the hypothetical Cretan city, because the people born in this state will almost certainly be free of the diseased elements that make souls bad. But the people of this state do not belong to a godly class of men, and as such, he must consider the possibility that at sometime in the future, some citizens may act non-virtuously, however small the chance. He admits, however, that behaving non-virtuously is not something that these men do of their own volition, but is something bred within them from crimes done long ago. Thus, an involuntary part of us is what makes us act contrary to virtue, and because it is not something that is voluntarily done, anyone, even citizens of this incredibly virtuous Cretan city, are capable of acting contrary to virtue; thus, laws regarding punishment are required in the unlikely event that any of the citizens are corrupted by this inbred tendency to do evil. Having thus established a need for legislation regarding punishment, Plato adopts a more theory-based discussion of what law and punishment should do, and what it is that constitutes a bad person. At 854d Plato informs the reader that punishment is inflicted upon the accused so that they may be made a better person, or more virtuous, but it is never done with the intention of harming the individual. He writes, “For if he suffer…judgment, he may perchance be made a better man by his correction. For truly judgment by sentence of law is never inflicted for harm’s sake.” At 857e Plato writes that anyone constituting laws such as he is doing means to educate the citizenry with them, not merely erect laws for the sake of influencing others. I believe I am not being at all inaccurate if I suggest we are to understand this education that Plato discusses here as pertaining to virtue: the laws must educate the citizens of the hypothetical city to be virtuous people. At 860d Plato informs us that the bad are always bad against their will, never voluntarily; a position one can intuit at 853b-854b. Following from this position, that the bad are incurable against their will, Plato informs us that we must cure them whenever possible. At 862c he writes, “…as to wrongful detriment – or gain…such things, as we know, are maladies of the soul, and we must cure them whenever they are curable.” Then from 862d-863a Plato discusses the incurable and argues that the he shall be put to death, and by doing so shall rid society of the pollution of evil, and the

Brian Bridson

2

2

punishment the person receives shall influence others to refrain from evil. If we look back to 854c, then we learn that Plato believes it is better to die than to live with an incurable malady of soul. He writes, “From the company of evil run, and look not once back. If such action bring relief from your malady, well and good; if not, think on the better way of death, and take your leave of life.” To recapitulate Plato’s position thus far: Punishment is not used to harm the individual, it is to ‘correct’ or ‘cure’ their malady of soul, while simultaneously deterring or educating people’s souls to refrain from being constituted in particular ways. The laws themselves are to educate people in how to be virtuous. Bad people are bad against their will due to a disease of the soul, and punishment must attempt to cure them whenever possible, and to kill them whenever the souls are found to be incurable, as it is better to die than to live an evil life. At this point I would like to focus the discussion around the concept of the incurable in Plato’s Laws. From what I evidenced above, an incurable is one with a soul diseased beyond the aid of the remedial power of the law. But this does not tell us how diseased a soul must be before it is deemed incurable; we must look deeper into the Laws in order to learn what this qualification is. We find this information at 854e-855a, when Plato writes:

“If ever a citizen be detected in such an act, in gross and horrible crime against gods, parents, or society, the judge shall treat him as one whose case is already desperate, in view of the nurture and education he has enjoyed from a child and the depth of shame to which he has sunk. Whence his sentence shall be death, the lightest of ills for him…”

Incurables, then, are those who commit crimes that the city believes to be particularly heinous, and that they have been instructed since birth to never commit. There is a high degree of intentionality required for someone to commit one of these crimes, since everyone and everything should be influencing them to not commit acts such as these. It is undoubtedly the case that this degree of intentionality constituted a great deal of insolence in Plato’s opinion, watching citizens disregard everything he and others have worked so hard to establish. This is, however, the only explanation of what it is that makes an incurable what they are; Plato does not offer us another explanation like this at any other point in Book IX. All we are made aware of regarding the incurables are these few outward actions, but we are never told why it is that they cannot be re-educated or ‘cured’ by some sort of punishment or other alternative. It is clear then, that there is a relatively high degree of vagueness regarding Plato’s concept of the incurable, which in turn makes the concept itself problematic for those of us trying to better understand what Plato really means. Due to the vagueness surrounding the concept of the incurables, it is easy to see how much more problematic it becomes when people are actually labeled as incurable and are then forced to endure the punishment prescribed by Plato in the Laws. Without a solidly argued explanation regarding why their souls are incurable, I am uncertain how anyone could be sufficiently satisfied that they would allow anyone to be put to death under these pretenses. I will return to this issue later in this paper, but for now I would like to consider what others have written regarding the use of capital punishment in relation to the subject of the incurables in the Laws. In his paper Punishment in Plato’s Laws, Stalley offers some interpretations for why Plato assumes such a hard-line position regarding the incurables, but does not cast

Brian Bridson

3

3

any new light upon why incurables are incurable. On page 479 he writes that capital punishment will serve as an example to others in the state by possessing a deterrent effect for them. At 480 he adds that punishment, including capital punishment, compels citizens to repeatedly act in particular ways while systematically avoiding others. One objection he does raise on 479 is that deterrent effects do not guarantee an education in virtue for the citizenry; it may only scare them into avoiding certain behaviours deemed inappropriate by the state. He writes:

“It must therefore promote a harmony between the appetites and right opinion. Clearly those who refrain from crime purely out of fear have not become virtuous in this sense. They do not have right opinions and their appetites are as maladjusted as ever. So if punishment simply acts as a deterrent it does nothing to promote what Plato sees as the primary aim of legislation.”

Stalley raises a very valid point: if all that the legislated punishment does is deter others from behaving in certain ways, then more has to be done to ensure that they act and think virtuously, because if the citizens are not actually virtuous, then the state itself is not actually virtuous, and this is a scenario that Plato wants to avoid. Another point that Stalley raises regarding the use or capital punishment is that it may expresses “in the most emphatic way possible the city’s utter rejection of the crime.” (Stalley, 483). This appears to be a more honest explanation regarding the use of capital punishment in the state: it allows a society to award behaviours and frames of mind that it finds appealing and to repress or destroy those that it finds to be detrimental to its own good. But again, we are left still searching for what it is Plato might actually mean regarding the concept of the incurables. Shuchman, in his Comments on the Criminal Code of Plato’s Laws does not, unfortunately, offer any new insights regarding the concept of the incurable. He enunciates the Platonic view that no one is bad voluntarily (Shuchman, 27) and stresses the importance of intentionality when considering the facts of each criminal act (Shuchman, 30). Regarding the incurable himself, Shuchman writes, “The citizen shall be put to death for his crime, because Plato deems him incurable who commits such a crime after the advantages accruing from the training and education provided for citizens.” (Shuchman, 32). If we revert back to the passage cited above, 854e-855a of the Laws, we see that this is just what Plato said regarding the incurables, and has not argued in favour of anything new regarding how it is that someone can be so diseased that they become incurable and deserve death as punishment. Though Stalley and Shuchman have not provided information for us regarding why it is that an incurable is incurable, Stalley did provide an interesting analysis of the use of capital punishment in the Cretan city. First, that it is not enough to employ this type of punishment in hopes of deterring the citizens from being unvirtuous. By deterring the citizens you only affect their outward actions, and there is no way to ensure that they want to be any more virtuous because of the deterrence than they would without it. Second, it does appear as if the use of such an extreme punishment as this is employed to enforce certain rules: to praise certain behaviours and to condemn others. It does not seem to necessarily have anything to do with a person being curable or not, it seems to only be concerned with whether anyone is in the way or not.

Brian Bridson

4

4

One possible alternative way of understanding the lack of argument regarding what it is that makes someone an incurable, is to keep in mind that Plato may have not written down everything that was essential to strongly supporting his arguments because these issues were common belief during his time. Thus, from this perspective, Plato did not need to argue why it is that an incurable is an incurable because perhaps at least a majority of people during his time believed that there were incurables, or something equivalent, and that the criteria for such designations were also just as well known. If this were the case, then it would certainly explain the lack of argument on Plato’s part in this and other areas of this dialogue. Being sensitive to the historical realities that were present during Plato’s lifetime is a warning we receive from Morrow in his paper Plato and the Rule of Law. While this is an important point to make and keep in mind while reading the Laws, we must analyze the text itself so that we may understand whether or not Plato deviated from cultural norms or whether the Laws does reflect what was for him a contemporary Greek state. If we find that there is a significant deviation from Athenian norms on Plato’s part, then demanding a more detailed argument explaining why incurables are incurable is justified. Morrow, in both Plato and the Rule of Law and Plato’s Cretan City offers a comparison between the laws Plato lays down in the Laws and the laws of classical Athens. Consider Morrow’s discussion of Plato’s Laws specifically regarding the citizen’s ability to bring suit against a judge. This allows any citizen to bring suit against a judge if they have acted in a spirit that contradicts the spirit of the established legislation. (Plato, 761e) Regarding this aspect of Plato’s proposed legal code, Morrow writes, “…and there is, so far as we know, no historical counterpart in the procedure of any Greek state, not even Athens, and but few analogies. It may be that we have here an original Platonic invention.” (Morrow 1941, 118) In this same paper, Morrow praises Plato’s requirement that capital cases must be decided in three days, instead of one. While Morrow does note that in Sparta trials could last for several days, Plato does express more political liberalism than was present in his contemporary Athens, even if the idea itself was not at all novel. (Morrow 1941, 121) On pages 125-6 Morrow notes that in Plato’s Laws there are more ‘sharers’ of the law than in any historical Greek state that we are aware of. Morrow also writes:

“To complete the picture of the range of protection afforded by Plato’s law we should add other details of his legislation, such as his proposals for increasing the legal writes of women, and for protecting wards and orphans.” (Morrow 1941, 125)

In Plato’s Cretan City, Morrow notes that Plato does differ from common Attic trial formalities (Morrow 1960, 281-282), and re-confirms the increased legal rights or protections that Plato awarded for women, slaves and children (Morrow 1960, 284-5). In this same text Morrow writes, “…Plato’s law, though formally stricter than Athenian law, probably comes close to the realities of Athenian procedure.” (Morrow 1960, 287) In the same breath, Morrow here claims that Plato does differ from established Athenian legal practice, but that he also probably reflects these same realities somewhat closely. While it is true, according to Morrow, that the legislation of the Laws does probably reflect (to some degree) actual Athenian legislation at Plato’s time, Morrow himself has provided us with a number of examples in which Plato has differed from what was then normative, and sometimes even dramatically. But this argument is not

Brian Bridson

5

5

sufficient enough to argue that we can now justifiably refuse to accept Plato’s concept of the incurable. One might argue that capital punishment was common during Plato’s time, as Saunders himself makes a number of references to it in his book Plato’s Penal Code. But if capital punishment was implemented during Plato’s time as a punishment, then we must understand why this punishment was used. If we can show that the reasons for punishing someone with death at Plato’s time was for reasons other than there being incurable, then we will have demonstrated that this was not common belief at Plato’s time and that the onus rests with Plato in order to explain to us, as he would have to his contemporaries, why particular individuals are incurable. In Plato’s Penal Code, Saunders writes that “In an Athenian court, [capital punishment] is thought to be the most severe penalty of all, and is imposed retributively for serious crimes and for purposes of deterrence.” (Saunders, 181) He goes on to write, “But Plato rules out rules out retribution, and sees the crucial issue as not the seriousness of the crime, but what that seriousness tells one about the criminal’s state of mind. A very serious crime is evidence that the criminal is beyond cure, and that the normal policy of attempting to cure it is inappropriate.” (Saunders, 181) At another point Saunders writes that the three general intentions of punishment possessed by a plaintiff were: 1. To gain compensation for himself or other victims. 2. To also give himself and other victims the pleasure of knowing about or seeing the offender suffer for their crime. 3. To deter the offender and others in the future from committing crimes and to teach the public that the law is stronger than crime. (Saunders, 120) Thus, we can see that punishment in general, and capital punishment specifically, was implemented with the intention of enacting retributive force and to make the accused suffer for what was done. As Saunders illustrates, Plato uses punishment to cure and to educate, never to seek retribution for offences committed. Furthermore, if you will recall, Plato himself argues that punishment is never employed to harm anyone, it is used to cure them, and death is used when particular people are regarded as being incurable. Thus, it is clearly the case that the Athenian and Platonic purposes of punishment differ markedly, and more importantly, that there is no mention of incurables within Athenian legislation. Clearly then we do must not assume that Plato’s lack of discussion regarding the actual constitution of the incurables has anything to do with any formally existing reflective conceptions during his time. If Plato wishes to employ this terminology, then he must provide a clearer argument for what it is that constitutes an incurable. Thus at our conclusion we are left at a cross-roads: we must either accept Plato’s weak concept of the incurable, allowing people to be executed based upon reasoning that is far from being sufficient, or we can challenge Plato. Like Stalley, we can argue that the entire idea of the ‘incurable’ appears to be a useful ruse employed by the state in order to strong arm its citizens into behaving in certain ways or face certain execution. This is of course speculation, but it is educated. Perhaps Plato really did have some qualifications in mind regarding what it is that makes incurables incurable, but without evidence of this, both positions are speculative. But this does demonstrate that the concept itself is problematic, and that we are lacking is the clarity required on Plato’s behalf in order to understand this aspect of Plato’s theory of punishment. If we wish to remain within a Platonic system of punishment, then it is imperative we exchange the inflammatory terminology and exchange it for something more acceptable. If Plato adopted such a position, he could come out from hiding behind his fanciful rubric of

Brian Bridson

6

6

incurability and admit that this is punishment he feels particular people deserve due to the severity of their crime(s). We cannot accept Plato’s position with respect to the incurables. His vagueness regarding the issue is such that we are unaware of why it is they are incurable, and why it is that they deserve death as punishment. There are alternatives to accepting his doctrine of incurability that will still allow for the punishments Plato had them suffer, they only require different, and perhaps more honest justifications. And in utilizing this revised system, one can still retain the terminology of education and curing that Plato does earlier in Book IX, for nothing about Book IX changes with this revision except the discussion of incurables and the justification for the invocation of death as an appropriate punishment.

Brian Bridson

7

7

Bibliography Morrow, Glenn R. “Plato and the Rule of Law.” In The Philosophical Review. Vol. 50 (2), 1941: 105-126. Morrow, Glenn R. Plato’s Cretan City: A Historical Interpretation of the Laws.

Princeton University Press: New Jersey, 1960. Plato. “Laws”. In Collected Dialogues. Princeton University Press: New Jersey,

2002. Edited by Edith Hamilton and Huntington Cairns. Saunders, Trevor J. Plato’s Penal Code. Oxford University Press, Oxford: 1991. Shuchman, Philip. “Comments on the Criminal Code of Plato’s Laws.” In Journal of The History of Ideas. Vol. 24 (1), 1963: 25-40 Stalley, R.F. “Punishment in Plato’s Laws.” In History of Political Thought. Vol. 16 (4), 1995: 469-487.