CHAPTER XVI
The Laws and its Theory of Law
*
Of Plato’s general view of law something has already been said. Of the specific reforms of contemporary Greek law which he suggests it is hardly necessary, or possible, to say much here. They belong to the history of law rather than to that of political theory. In the history of law they occupy an important place. They are based, as we have seen, on the technical and systematic study of jurisprudence which was apparently pursued in the Academy by the side of the study of mathematics. A thorough examination of the laws of Sparta and Athens – especially of Athens – had gone to their making; and just as they rested on the laws of the past, so too they were destined to influence the laws of the future – the laws of the Hellenistic States, and, through them, the laws of Rome.1 The Laws contains perhaps the first attempt made in Greece to frame a code which is not merely based on the laws of a single State, but embraces Greek law in general, and is not a mere tabulation, but a scientific study, with a constant reference to the first principles of social conduct. It is for Greece what Bentham’s Theory of Legislation is for England. It is a serious contribution to jurisprudence, permeated by the legal sense, and going into legal detail. Plato is interested in legal procedure, and he lays down the rules of pleading to be followed in the courts (855 D–866 A); he discusses the law of contract, of succession, and of property in general: he regulates minutely the rights of the passing stranger to pluck the grapes of the vineyard and the apples and pears in the orchard (844 D–845 C). But though we may speak of the legal sense in Plato, he hardly shows ‘that artificial perfection of reason, gotten by long study of the laws’, which a lawyer like Coke possessed and praised. His law is morality, and even theology, as well as law; and a trained lawyer would criticize much of the Laws on the ground that it is not law at all. There is no firm distinction between legality and morality, or between law and religion:1 the legal code contains elements which properly belong to moral philosophy, or, again, to what may be termed moral theology. This, indeed, is a characteristic which we may find in Greek writers other than Plato. Whatever contribution the Greeks may have made to law, they never clearly demarcated law – as a separate branch of study, with its separate principles – from the general study of conduct; and just as in their courts non-legal considerations might be alleged and acknowledged, so in their writings on law we may find what we should regard a non-legal elements adduced and accepted.
PLATO’S VIEW OF CRIME AND PUNISHMENT
It is in the treatment of criminal law that Plato shows this characteristic most prominently. We must remember, indeed, to distinguish between law and preamble – between actual enactment and the explanation of that enactment in the light of first principles. That distinction is not always easy to draw: preamble runs into enactment, and enactment turns into preamble; but so far as it can be drawn, it helps us to separate between the element of moral philosophy, which naturally enters into the preamble, and that of specific law, to which we should expect the enactment to be confined. Remembering this distinction, we may turn to consider Plato’s treatment of crime and punishment in the ninth book of the Laws. Much of that treatment moves in a sphere which is remote from that of ordinary legal ideas and practice.2 To the lawyer and the judge, crime is an external and objective act, which violates, in a greater or less degree, an external and objective scheme of ordered life, based on the recognition of concrete rights and duties. When a violation of that scheme has taken place, the judge does not inquire into the moral state of the criminal; he inquires into the actual and concrete facts of the crime. He has to decide that there is adequate proof of its commission: to what degree it violates legal order; and what is the appropriate penalty which will prevent its commission in the future. He must also, it is true, decide whether the crime was intentional or unintentional, because an intentional act is obviously and objectively different from an act which is unintentional; and he may also be bound to examine the circumstances under which the crime was committed – which again are obvious and objective – and to determine whether they extenuate or aggravate its commission. But if he considers intention, and examines circumstances and their effects, he does not examine motive as such. He does not inquire into the criminal’s disposition,1 or the motives operative within his conscience; and he does not do so because he cannot, and because only omniscience can read the secrets of conscience – secrets which even the criminal himself, if interrogated, might not be able to explain, since men scarcely know even themselves, and gloss over even to themselves their own motives and springs of action.
To Plato, however, all this circle of ideas is erroneous. Legislation, he thinks, was never yet worked out rightly (857 C). The ordinary State treats a criminal as a slave-doctor treats a sick slave – it looks at an obvious symptom, and tyrannically orders an obvious remedy, without considering the general constitution of the patient, or pausing to explain to him what is wrong, how it can be cured, and how he can co-operate in the cure (857 C–D: cf. 720 B–D). The true State will take a higher view of its own functions and of the criminal’s rights. It will deal not so much with acts, which are symptoms, as with the general constitution of the criminal’s mind; and it will seek, by the spiritual means which are appropriate to a diseased mind, to cure his malady. Laws should be loving and wise parents, rather than tyrants and masters; they should not merely threaten and depart, after placarding their decrees, but should train the citizen from day to day (859 A). This, it may be said, is to give education rather than to administer law (857 E). Plato’s reply is simple. Administration of the law is education: punishment is reformation, and its object is so to act on the mind as to produce a conversion of character. This is a view which accords with his advocacy of preambles. They are a mode of persuasion and conversion, intended to induce the citizen freely to accept the law; and punishment also, though it may be more drastic, is still a mode of persuasion, intended to produce the same effect. But it is a view, none the less, which involves a different theory of crime from that on which ordinary law is based. Crime, on Plato’s theory, is involuntary. It is not so much the intentional act of a wrong will, as the necessary result of a moral disease1 from which the criminal is suffering, and which the State should labour to cure.
We have already seen that Plato, in the Laws no less than in the Republic (supra, pp. 304–5), argues with all his strength that justice, or right-doing, is happiness. It follows that injustice, or wrongdoing, is unhappiness. No man voluntarily chooses unhappiness; and no man therefore voluntarily chooses wrong-doing, which involves unhappiness. Wrong-doing, or crime (άδικία), is therefore involuntary. The unhappiness which it involves is not so much physical misery – though that, if not in this life, at any rate in the life to come, is its inevitable result: it is rather the more exquisite misery of spiritual degradation, which comes from the disturbance of the balance of the soul and the victory of the worse elements of passion and lust, with their worse pleasures, over the pure element of reason and its pure delights.2 It is impossible to believe that any man will voluntarily plunge into such misery. It is equally impossible to believe that a man who has been plunged into such misery will not voluntarily welcome a cure, and be ready to accept the punishment which brings that cure.3 In this sense the State which inflicts punishment is the agent of the criminal who is being punished; it does not merely stand for the rights of the injured person, or for a violated scheme of order, but also for the better side of the criminal himself. In the language of Rousseau he is being forced to be free – free from bondage to the worst elements of his soul; in the language of Kant, he is being treated as an end in himself, and not as a means to deter others from committing crime.
Plato would thus appear to hold a reformatory view of punishment, and to connect it with a theory of crime as a form of disease by which the criminal is visited. ‘No punishment inflicted according to law is inflicted for the sake of harm, but in order to produce one of two results – either to make the sufferer better, or to make him less bad than he would have been without it.’ (854 D–E); and the reason is ‘that, to him who regards crime as involuntary, the criminal must appear to commit his crimes involuntarily’ (860 D). The view may remind us of that of Samuel Butler in Erewhon, where crime is ‘held to be the result of either pre-natal or post-natal misfortune’, and where, ‘without being judicially punishable’, it is put straight by ‘a class of men trained in soul-craft’ and termed by the name of straighteners.1 Butler, a frank determinist, would substitute the mental physician for the judge in the work of curing the involuntary ‘misfortune’ of crime. Plato’s attitude to crime may seem logically to involve a similar consequence. If crime is involuntary, why legislate against it as if it were the reverse; and why retain any judicature? Yet Plato legislates, and legislates in abundance; he retains a judicature, and, what is more, he retains, as we shall see, a distinction between involuntary and voluntary offences.
The truth is that Plato is not by any means a determinist after the fashion of Butler. He does not regard crime as the result of inherited bias, or as the consequence of an evil social environment. The old idea of an hereditary taint he specifically repudiates: children, he holds, may escape their father’s ways (855 A). The influence of society on its members he admits, and indeed emphasizes throughout the Republic and the Laws: a bad State makes bad citizens (832 B–C). But crime remains for him crime – a thing to be abhorred; a thing not only involving social disgrace (αἰσχρόν), but also and in itself degrading (κακόν). If he holds it to be involuntary, that does not mean that it is a misfortune which has befallen the criminal ab extra: it means that it is a corruption of the soul which no thinking man can ever freely choose to incur. Plato, in a word, believes at one and the same moment in the real wickedness of crime and the real goodness of man’s mind; and that is why he believes that free mind can never voluntarily issue into crime. When wickedness enters, it is because the mind is enslaved, and involuntarily accepts the unwelcome guest. Anger and lust have overpowered it, and prepared a habitation for that which it abhors (863). The bad State may have made such a conquest easy: it is all the more the duty of the good State to conquer the conquerors, and to restore the free sovereignty of mind. Plato insists less on the evil effects of an evil State than on the good work which the good State can perform in helping its citizens to conquer passion and pleasure. It can train them and habituate them in youth by all the agencies of education: it can guide and correct them all their days by its laws and courts and judges. It can pit the pains by which it visits crime against the violent pleasures which incite men to its commission: it can train the criminal by such diet and regimen until he is cured, and mind is seated once more on her throne. And if all else fails, and the State cannot give back to the criminal health of mind, it can give him, as the last resource, the gift of death. ‘It is better for such men not to live; and moreover by their death they will do a double service to the State, furnishing others with an example to warn them from crime, and ridding the State of evil-doers’ (862 E: 864 E).
Plato, then, admits the responsibility of society for the corruption which is fostered by its own corruption: he admits, and he emphasizes, the responsibility of society for the correction and cure of all corruption; but he never denies the responsibility of the individual for his acts. Crime is the result of the criminal’s own passions; and even if his reason is an involuntary agent, something in him must be held responsible (Plato scarcely explains what that something is, and this is a lacuna in his exposition), and that something must be corrected, or if it cannot be corrected, it must be annihilated. The theory of the involuntary nature of crime is thus compatible with laws, courts, judges, punishments, and even with the ultima ratio of capital punishment. Not only so, but it proves, in the issue, compatible with a distinction between voluntary and involuntary actions. In order to achieve this distinction, Plato first of all distinguishes (861 E–862 B) between crime, or ἀδικία, and damage, or βλαβή. Crime depends on motive and disposition: it is an internal corruption of the soul, which is always involuntary. Damage is an objective act, which results in the material diminution of the status or property of the person damaged; and it may be intentional or unintentional.1 Crime is a matter for cure and punishment: damage is a matter for compensation, and such compensation is twofold, part going to make restitution, and part to the chastisement of the offence (933 E).2 Damage does not necessarily involve crime: it is separate from crime, may exist without crime, and must be treated apart from crime. It is wrong to believe, as men generally believe, that all damages are crimes, and that therefore, damages being divisible into intentional and unintentional, crimes may be divided into voluntary and involuntary (861 E).3
On this argument we should expect two consequences to follow – first, that some distinction between intentional and unintentional damage would appear in the amount of compensation exacted;1 and secondly that crime, whether or no it issues in damage, would always be visited with the punishment appropriate to crime. Neither of these consequences, however, is drawn by Plato.2 He is not concerned to develop his principles, but simply to state the principles themselves. The essence of these principles is that there is a distinction between the law that relates to external action, or damage, and the law that relates to inward disposition, or crime; and that the distinction of voluntary and involuntary can only be drawn within the former sphere. Such principles could hardly work in practice; nor are they really applied in practice by Plato himself. The State cannot take cognizance of inward disposition, because such disposition is not a cognizable and measurable fact. The State deals with men in the mass, and with actions in the mass; and action on such a scale must be quantitative and not qualitative, dealing with measurable and external things, and not with the fine shades of motive and disposition. Immorality must be visited by the conscience: only illegality can be visited by the State. A State of five thousand citizens, in which the authorities knew every citizen, might indeed essay what the great State of our days could never attempt; nor can we do justice to Plato’s view unless we remember that it is adjusted to ‘the small society’. But even such a State, if it attempted the task suggested by Plato, would find itself in a dilemma. It might either become impossibly inquisitorial and rigorous; or going on the motto tout comprendre, c’est tout pardonner, it might sacrifice the maintenance of law and order on the altar of a too charitable comprehension of the springs of all action and the characters of all agents.
Plato perhaps hoped, as the idealist cannot but hope, that men might rise above the strict letter of the law with its external appreciations and its mechanical applications – applications sometimes excessively lenient and sometimes excessively rigorous – to a spirit of understanding that never failed: he perhaps trusted that rulers, such as he sought to institute, might do what ordinary governments failed, or never attempted, to achieve, and that ‘legislating for those best able to judge’, he might legislate in new and higher ways (876 D). But if he did, it was only in passing; and he does not seek to carry his principles into effect, when he begins to legislate on matters of criminal law. In spite of his thesis that all crime is involuntary, and that the distinction of voluntary and involuntary can only be applied in the sphere of damages, he suggests a law of homicide which is based on the ordinary conception of crime and the ordinary distinction between intentional and unintentional actions (865 A–874 C). There is involuntary homicide, which demands ritual purification: there is homicide committed under the influence of passion, which, if it is unpremeditated, is akin to involuntary homicide, and may be lightly punished, but, if it is premeditated, is akin to voluntary homicide, and must be punished more heavily; finally, there is voluntary homicide with criminal purpose, which is to be punished with death.1 Plato, in effect, after registering a protest against the principles on which ordinary law is based, is content to follow the principles of ordinary law. It may seem therefore as if the whole discussion on the nature of crime and the distinction of the voluntary and the involuntary (857–64 C) were only a digression, and a digression inconsistent with the main body of the Laws. That, indeed, is very largely the case. Plato is anxious, as it were, to save the honour of philosophy while at the same time following the ordinary rules of jurisprudence. In his philosophy there is no room for the conception of voluntary crime which appears in jurisprudence; and he therefore registers a philosophic protest against the conception of voluntary crime. The protest once made, he turns back to jurisprudence, and, adopting its conceptions, seeks to give them a new and more thorough system. The reader, warned that on first principles the legal scheme cannot stand, will accept that scheme contingently and conditionally. It is ‘the law’, indeed, but it is not also ‘the prophets’: it is the scheme of life of the ordinary State, but it would not be the scheme of life in an ideal society.1
In the issue, therefore, Plato returns to the conception of crime on which the judge in any court of law proceeds. He is willing to treat crime as voluntary wrong-doing: he is willing that inquiry should be made into intention, and into attendant circumstances, without pressing for consideration of the motives and disposition of the wrong-doer. The disappearance of the conception of crime as involuntary may seem to involve, as a natural corollary, the disappearance of the view of punishment which is connected with that conception. Plato, however, retains his belief in the reformatory nature of punishment; and even when he treats crime as voluntary wrong-doing, he still continues to regard punishment as a process of healing the wrong-doer. Crime remains, in his view, not only a violation of social order, which society is bound to prevent, but also, and even more, a moral enormity in the criminal, which society is bound either to cure or to kill. He is convinced that punishment is not retributive: he will allow that it is preventive: he insists that it is reformatory. In a passage in the ninth book he repeats, almost in identical words, the view he had put forward long ago in the Protagoras and the Gorgias. Punishment is not retribution for the past, for what has been done can never be undone: it is imposed for the sake of the future, and to secure that both the person punished, and those who see him punished, may either learn to detest crime utterly, or at any rate to abate much of their old behaviour (934 A–B).2 Here reformation of the criminal himself, and the prevention of crime in others, are set side by side as joint objects of punishment. But of these objects reformation is prior, and prevention is secondary and consequential. The conception of crime as disease, and the use of metaphors drawn from the art of medicine, run through the Laws; and if Plato does not, like Samuel Butler, invent practitioners for spiritual ‘straightening’ (or, as it is nowadays called, orthopaedy), he brings punishment primarily under the rubric of therapeutics. We must beware, indeed, of thinking that his medical metaphors have any affinity with the language of modern criminologists who treat crime as a species of physical disease. The disease of which Plato speaks is always a disease of the spirit, and is never conceived to issue from defects in the constitution of body or nervous system.1 Yet objection may be taken to the use of medical metaphors in the sphere of crime, even when they are used in the sense in which they are used by Plato. Crime is not a disease: it is the assertion of an anti-social will by a free and responsible agent,2 who must be treated by society as intending his action and its results, and on whose act society must react if it is to preserve itself and all the scheme of life on which it is based. The moral philosopher may treat crime as a moral disease: society, as an organized body of men living under a set of rules, must treat crime as a deliberate and responsible defiance of those rules. It must defend itself and its scheme of life; and the primary purpose of such defence, or in other words of punishment, must be to prevent violation of that scheme. Prevention is better than cure; but prevention may also be cure, and preventive punishment may also, and as it were incidentally, be a reformation of the person punished. To seek to deter others from the violation of social rights is also to deter the criminal himself; and in this way, and to this extent, the criminal is reformed through punishment. Such reformation, however, is ‘an incident of the preventive function’ of punishment.1 Plato reverses this order. He regards prevention as a concomitant, and even, we may say, as an incident, of the primary and essential function of cure and reformation.
Yet the punishments which Plato desires to see inflicted by no means err on the side of leniency. It was said above that the State which acted on Plato’s principles would be either impossibly inquisitorial and rigorous, or impracticably charitable to the sinner. It was said, too, that Plato had a firm belief in the real wickedness of crime. We might therefore expect, and we find, that it is the first alternative which is followed in the Laws. Something has already been said of the espionage which Plato admits; and one of the features of the later books of the Laws is the rigour of the sentences imposed on a variety of offences. The list of capital offences seems constantly to receive fresh accessions. In the ninth book it includes sacrilege, faction, and treason: in the tenth book it embraces forms of religious unbelief: in the eleventh book it is extended to advocates who make the better course appear the worse: in the twelfth book it is made to include offence after offence – the theft of public property;2 misconduct of magistrates; the receiving of exiles and the taking of bribes; and contempt of the decisions of courts of law. The ‘remedy of death’ is administered in profusion; and if some of the offences thus visited were also made capital under the law of Athens,3 there are several which Plato stands alone in including in his rigorous catalogue.
RELIGION AND RELIGIOUS PERSECUTION
Among the offences punishable by death Plato includes, as we have just seen, the offence of religious unbelief. The ecclesiastical law4 contained in the Laws is one of the most striking elements in all the dialogue, and it marks the greatest departure from the tone and temper of the earlier dialogues. The last work of Plato’s life has something of the mystical lore of life’s sunset. As he drew towards the shades, he felt more and more the littleness of human things, the greatness of God, and the supreme need of a reverent faith.
We the brave, the mighty, and the wise,
We men, who in our morn of youth defied
The elements,
are after all but ‘playthings of the gods; and this, truly considered, is the best of us’ (804 C: 644 E). Enough, then,
If, as towards the silent land we go,
Through love, through hope, and faith’s transcendant dower,
We feel that we are greater than we know.
It is He who should be for us the measure of all things, and not (as Protagoras said) we ourselves (716 C); it is in Him we should put our trust, and not in our own subtle reasonings. In this evening spirit, Plato turns to the materialist who explains the world in terms of matter, and the immanent powers of matter, and the necessary laws of motion according to which matter moves (889 B–890 C). On such a view the world began with elements, each possessed of an immanent power; and from the accidents of their struggles and combinations – combinations in which one element asserted itself and others admitted its mastery – Nature or Chance produced sun and moon, plants and animals, and all existence as we know it. No God, no mind, no art made the world: there are no gods; mind is an epiphenomenon; art is a later invention. Art sprang up afterwards, and out of Nature or Chance: art is mortal, and of mortal birth: it is a human and temporary thing: it is only an imitation of Nature and her products and processes. Some of these imitations are merely in play, like music and painting; some have a serious purpose, like husbandry, which imitates Nature’s process of reproduction and cooperates with Nature in the process. Of the latter kind is political art: it imitates and co-operates with Nature, but it does so in a less degree than husbandry. It imitates very imperfectly: Nature hardly co-operates at all in its work: the laws it makes are utterly artificial, and based on false assumptions. The one law of Nature is that in the struggle for mastery the strongest element is master. In the human world, as in the physical, each unit should assert its immanent power. The highest right is might: to live according to Nature is to have dominion over others, and not to be legally subject to others. These are the true assumptions; law based on these assumptions is the only true law: political art which imitates fera Natura is the only true art of politics. As it is, laws differ from State to State, according to the different agreements men make with one another when they legislate. Instead of the one uniform law of Nature, there is a chaos of different laws; instead of a harmony between Nature and the art which imitates Nature, there is a gulf between art and Nature, and men make dishonourable by law what is not dishonourable by Nature.1
Thus, according to Plato, does a materialistic conception of the world, as without mind and without God, result in a correspondingly materialistic conception of politics. It is such bad metaphysics which makes true metaphysics necessary: ‘if such arguments had not been scattered broad-cast, there would have been no need of arguments to defend the existence of the gods’ (891 B). As it is, their existence must be defended, and Plato attempts the defence. He tells us, as the true rationalist will always tell mankind, that mind is first and matter last. The false rationalist simply inverts the order of the world, when he begins with mindless matter, and then introduces mind, under the name of art, as the mere product of matter, and yet its active imitator, and even its perverter. Mind is first, in the sense of the eternal Mind: it is the controller (or, as Plato says, the mover), and not the product of matter; and as the eternal Mind of God moves the universe:
Mens agitat molem, et magno se corpore miscet –
so mind moves each of its parts, and ‘all things are full of gods’. But if this is so, the antithesis between Nature, which is fashioned by mind, and art, which mind also fashions, must disappear. ‘Law, and all art, exist by Nature, or no less than Nature, because they are products of mind’ (890 D). Nature is not the laws of mindless being, or art man’s imitation or perversion of that being and its laws: Nature is being, controlled and moved by mind, and art, if it is making, is making which is also controlled and moved by mind.
Nature is made better by no mean
But Nature makes that mean; so o’er that art,
Which, you say, adds to Nature, is an art
That Nature makes…. This is an art
Which does mend Nature – change it rather; but
The art itself is Nature.
Materialism, however, must be corrected not only by philosophical argument: subversive as it is of the proper conceptions of law and politics, it must also be corrected by the force of the State. The State must lay down the lines of a true belief about ultimate things, or, in other words, a State-religion, and it must punish (or persecute) those who refuse to accept its creed. The religious creed laid down in the Laws is the creed of a natural religion, whose fundamental tenet – the existence of a Divine Mind which controls the universe – is proved by a study of the heavens. Plato preaches this creed with the fervour, and sometimes in the very language, of the Hebrew prophets; and the three main articles of his creed are the articles of the belief of Isaiah and Ezekiel. The first article is the existence of God (893 A–899 D). Motion is produced by mind, and the perfect motions of the heavens can only be produced by a perfect mind. Plato’s language is sometimes monotheistic, and sometimes polytheistic: sometimes he speaks of God, and sometimes of the gods; but his fundamental belief is in a presiding and controlling mind of the universe, even though he is willing to hold that sun and moon and stars, years and months and seasons, have each their moving mind and each their proper deity. The second article is the universal providence of God (899 D–905 C). He neither slumbers nor sleeps; He governs all things, great and small. The world is a single scheme, contrived by its mover and ruler so that all works together unto good; each of us has his place, which the King himself has assigned, and each has his part to play in the scheme of the whole: He watches over all, and rewards each player according to his part. Nothing escapes His watchfulness: no man can escape His justice: to serve His will in our appointed place is to find happiness, and to desert our place in rebellion against His will is to find misery at the latter end.1 The last article of Plato’s creed is the unswerving justice of God, and his unfailing observance of the law by which He acts (905 C–907 A).1 He will never violate, by one jot or tittle, the scheme on which the world moves. No supplications can move Him from the way of justice: no sacrifices and oblations will save the sinner from his reward.
A true State, Plato believes, can only exist on the foundation of such religious belief and through the acceptance of such articles of religion. Apart from such a belief, and if agnostic principles are allowed free play, the State becomes a chaos; naturalistic ethics triumph, and a state of nature ensues in which each man claims rights co-extensive with his natural powers. The argument of the Laws on this point has its affinities with that of Burke in the Reflections on the French Revolution. Plato might have subscribed to Burke when he spoke of the religious sense as
‘having consecrated the commonwealth, and all that officiate in it.… This consecration is made, that all who administer in the government of men, in which they stand in the person of God Himself, should have high and worthy notions of their function and destination. This consecration is necessary also to operate with a wholesome awe upon free citizens.’
Burke was arguing against the French Revolution, where, in his view, political chaos went hand in hand with the destruction of the Church and the decay of religious belief. Plato was arguing against Athenian democracy, where, he held (p. 360), egoism and licence were the corollary in political life of materialism and unbelief in the realm of opinion. Burke advocated the State establishment of a church: Plato, to whom a church was an unknown thing, advocated State establishment of a creed. This is to make disbelief a violation of law; and where Burke is only committed to the imposition of disabilities on dissenters from the established Church, Plato is thus committed to religious persecution.
The persecution which he advocates takes three main directions. Honest disbelievers, who are such for want of understanding, but are otherwise good men and citizens, are to be imprisoned for five years in the House of Reformation (
) which stands near the place of meeting of the nocturnal council. Here they are to be visited by the members of the council, who are to ‘hold converse with them for their correction and the salvation of their souls’ (909 A). At the end of five years they are released; and if they are reformed, they dwell in peace, but if they are not, and if they are again convicted of unbelief, they are put to death.1 Dishonest disbelievers, who not only disbelieve in the religion of the State, but practise vain charms and incantations of their own for the sake of profit, to the ruin of individuals and families and cities, are to be imprisoned for life, in solitary confinement, in a dungeon situated in some desolate and savage tract near the centre of the country; and when they are dead, their bodies are to be cast outside the frontiers. Finally, Plato lays down a law against ‘private religions’. He would prohibit not only unbelief, but also private belief: he would not only command conformity to the order of public worship, but also forbid conventicles in which any sort of private worship is practised. The establishment of places of worship, and the institution of cults, are a difficult and delicate matter which demands discretion, and should not be rashly undertaken, in some superstitious mood, by any chance citizen. There is an additional reason for prohibiting private chapels and services. They may be instituted not only by the credulous, who, while ready to confess the creed of the State, wish to add a private creed, but also by disbelievers of the baser sort, who seek to cover their disbelief by a cloak of private devotion. Both reasons demand their suppression; the credulous must be compelled, by punishment if necessary, to resort only to public places of worship: the disbeliever who has professed a devotion which he does not feel must be punished with death.2
In some respects Plato’s advocacy of religious persecution may remind us of the Roman Church of the Middle Ages. There is, however, an essential difference. The persecution which Plato advocates is secular: it is caused by disbelief in a State religion: it is practised for raison d’état. The persecution of the medieval Church was clerical: it was enforced by the courts of the Church: it was intended to maintain the purity of that general society of all Christian men which transcended States and their boundaries. A truer analogy may perhaps be found in the religious persecution of Elizabeth. Her motto, like that of Plato, was salus populi. If Plato believed that a State which was not held together by a common religious belief must necessarily fall into a state of nature and a bellum omnium contra omnes, Elizabeth believed that an England, not united by a uniform religious ritual, must necessarily be torn by a civil war of sects. If he thought that a State in which unbelief was tolerated could never be permitted by Heaven to prosper (910 B), she, too, thought – or at any rate spoke – in much the same way. Such considerations may help to explain the advocacy by Plato of religious intolerarce; but do they excuse it? It has been urged, by way of excuse, that the rulers of Plato’s State, who had found their way to a true belief through science and the study of the starry heavens, would not readily repress in others the liberty of thought they had practised themselves.1 Yet is not Plato inconsistent with himself, and his own best critic, when he writes, in defence of the study of astronomy,
‘It is said that we ought not to inquire into the supreme God and the universe, or to cumber ourselves with much searching after first causes, because these things are contrary to faith; but the truth is entirely the other way … and if a man thinks any sort of study noble and true, useful to society and pleasing to God, he can do no other than speak’ (821 A–B)?
In truth, it is no good defence of Plato to urge that he could afford to persecute, because he could trust the wisdom of the persecutor; nor do we justify the teaching of the Laws by pleading that its author would never have entrusted the rulers of ordinary States with the powers he was willing to confer on the rulers of his ideal community. The fundamental question remains – can any human being be entrusted with coercive power over others in the realm of religious belief? Even if that question be answered in the affirmative, a further question arises; can a creed based on human reason, as Plato’s creed was, ever claim the infallibility, and the right to be vindicated by persecution, which the medieval Church held herself justified in claiming because she believed her creed, and her own interpretation of that creed, to be divinely inspired?
of the criminal; and (2) Plato’s distinction between ἀδικία and βλαβή does not rest on the difference between the modes of legal action to which they give rise, but on the difference between the subjective (criminal disposition) and the objective (material injury).
(862 B), which is not present in such damage: (2) that intentional damage may be crime, and will always be crime when a criminal disposition is present. But crime itself is always involuntary; and it therefore follows that intentional damage in which a criminal disposition is present means involuntary crime. Baldly stated, this is a contradiction, or at any rate a paradox.
, 869 E), is a contradiction of the previous argument. Plato, it will be noticed, leaves no room for cure (otherwise than by the punishment of death) of the voluntary homicide who has committed murder with malice aforethought: he accepts the ordinary Greek law of capital punishment. His treatment of homicide in general is not unlike that in English law. English law distinguishes (1) justifiable or excusable homicide (on the distinction see The Laws of England, IX. 586–7): (2) culpable homicide. The latter falls into two main divisions: (1) manslaughter, or unlawful homicide without malice aforethought, when one person causes the death of another, either intentionally in the heat of passion under certain kinds of provocation, or unintentionally, whether by culpable negligence or while committing an unlawful act not likely to cause damage to others; (2) wilful murder, which is unlawful homicide with malice aforethought.