Plato's Laws IX, 3

The next important topic the Athenian discusses is punishment for crimes. He has an interesting principle to propose: theft should be punished the same way, by being forced to repay double what was stolen. The effect of this proposal is that the success of the thief determines the penalty, but that there is proportionate equality for all thieves in terms of the punishment received. 

This proposal receives pushback from his comrades. I'm not sure about it either. This would seem to serve as an excuse for a lot of thievery from the citizens, who have a secure source of wealth from which they could pay fines if they were caught (and which they cannot fall below). In Ivanhoe King Richard assigns Friar Tuck only the right to take three bucks per season, "but if that do not prove an apology for thy slaying thirty, I am no Christian knight nor true king." Here too a man who was in the upper quadrant of wealth might regularly engage in wanton thefts, knowing that if he got away with it he increased his wealth; whereas if he were caught in one of them, he only had to repay the double portion and go free.

The Athenian doesn't actually defend his proposition when challenged on it.

Ath. Once more let there be a third general law respecting the judges who are to give judgment, and the manner of conducting suits against those who are tried on an accusation of treason; and as concerning the remaining or departure of their descendants-there shall be one law for all three, for the traitor, and the robber of temples, and the subverter by violence of the laws of the state. For a thief, whether he steal much or little, let there be one law, and one punishment for all alike: in the first place, let him pay double the amount of the theft if he be convicted, and if he have so much over and above the allotment;-if he have not, he shall be bound until he pay the penalty, or persuade him has obtained the sentence against him to forgive him. But if a person be convicted of a theft against the state, then if he can persuade the city, or if he will pay back twice the amount of the theft, he shall be set free from his bonds.

Cle. What makes you say, Stranger, that a theft is all one, whether the thief may have taken much or little, and either from sacred or secular places-and these are not the only differences in thefts:-seeing, then, that they are of many kinds, ought not the legislator to adapt himself to them, and impose upon them entirely different penalties?

Ath. Excellent. I was running on too fast, Cleinias, and you impinged upon me, and brought me to my senses, reminding me of what, indeed, had occurred to mind already, that legislation was never yet rightly worked out, as I may say in passing.-Do you remember the image in which I likened the men for whom laws are now made to slaves who are doctored by slaves? For of this you may be very sure, that if one of those empirical physicians, who practise medicine without science, were to come upon the gentleman physician talking to his gentleman patient, and using the language almost of philosophy, beginning at the beginning of the disease and discoursing about the whole nature of the body, he would burst into a hearty laugh-he would say what most of those who are called doctors always have at their tongue's end:-Foolish fellow, he would say, you are not healing the sick man, but you are educating him; and he does not want to be made a doctor, but to get well.

From here he departs into two of Plato's favorite arguments: a criticism of the poets for portraying unjust things in heroic persons, and the Socratic argument that no one does wrong voluntarily. The first of these we have seen often enough that I will pass it by unless any of you wish a further discussion; if so, ask after it in the comments.

The second one Plato treats differently here than elsewhere, and it will require a little time to construct a proper comparison. Thus, I will end here for today with the question (for you, if you'd like to discuss it): what do you think of this idea of formal and proportionate equality in punishment? Does the fact that there is only approximate equality among citizens in society make this unjust? (There is even less equality among slaves and foreigners; but inequality there was built into the Athenian's justice system, which formally assigns them different and lesser punishments on the assumption that they are less blameworthy because they lacked the education in virtue.)


J Melcher said...

Should a rich man drunkenly fall asleep under a bridge, next
to an identically intoxicated poor man, both may be arrested.
So far, in accordance with the proverb. Then arich man posts bail. The impoverished drunk stays in jail. The rich man collects his
customary rents and dividends and may even go into his
salaried partnership position; while the poor man has his
wages docked, or gets fired, for failure to clock in while
being held. Both appear before the court -- the rich man is
represented by a clever lawyer while the poor man, if
championed at all, has an overworked "public defender". The
judge may assess a financial penalty to both in perfect
equality -- say, $50. (A $25 fine and another $25 in "court
costs.) The rich man pays from the walking around money he
carries in his wallet. The poor (now jobless) man has to
pawn some of his not-very-valuable property to make a down
payment on the fine.

Falling behind in his payment plan, the poor man accumulates
interest charges. Twelve months later he makes the tenth $5
payment and believes he's square with the court -- only to
find later a warrant has been issued for his arrest for
unpaid fines. (Payments were applied to interest charges
FIRST, you see, while the principle of the fine continues.)

There are a number of idealized propositions intended to
reduce this disparity of outcome. The aforementioned public
defender is one such -- however much I paint him in an
unappreciated light. The right to a speedy trial is another
-- hopefully no one is held very long in mere "arrest" apart
from convicted penitential custody.

It seems to me that the penalties imposed upon law breakers
would better be measured in time than in money. Hours of
community service like picking up litter; or painting curbs.
Whether earning a wage of $5 per hour or a salary of $200,000
per year; an hour of lifetime improving the environment is
an equal imposition upon offenders, and a comparable
deterrent to repeating mistakes.

In a community with little litter or graffiti, perhaps a
simple whipping would suffice. Both the rich and the poor
alike would, presumably, suffer similarly from having skin
flayed from their backs. (Antibiotics and bandages,
afterwards, would of course be purchased and applied by the
justice system.)

Grim said...

I think Sweden has hit upon the idea of proportionate fines to one's wealth, so that a poor man might pay 50 euros for speeding, and a rich man 5,000. It would be relatively easy to incorporate that kind of thing into Plato's system, since he already has the ranking system in place (a family either has its endowment, or 2x, 3x, 4x the original endowment -- so fines could be 2, 3, or 4 times higher depending on where your family fell).