Plato's Laws IX

The Ninth Book of the Laws turns to the judicial power. This is a subject on which our own Founders might have wisely spent more time. They famously considered the judiciary the 'least dangerous' branch, and as such the form they put to it was ill-defined. They only asserted that there should be a Supreme Court, but said little about its composition; they left open the potential for as many inferior courts as might chance to occur; and they established that all crimes should be tried by jury. Because they set so few limits the judiciary quickly arrogated to itself the right to determine whether or not laws were constitutional, and that power has grown into the power to be a rolling committee on amending the Constitution itself -- a power the Founders plainly never intended to grant. Likewise, the jury trial they did establish was so unhampered by formal restrictions that it has largely ceased to exist; over 90% of criminal cases in America are settled by plea bargain, with the jury trial in which the state has to prove its case a rare exception instead of the rule. 

So it is worth looking at other ideas about how the judicial function might operate, even if we do not adopt or advocate for them. One day we may have the opportunity to re-imagine how to draw up the laws for the exercise of this power; certainly someday someone will. Having an alternative starting point might give rise to ideas that would never occur to those who have only ever known one approach.

The Founders only took care to define one law in the Constitution, treason, which will be the subject of the second part of the commentary on Book IX. In the first part, the Athenian begins with an even higher crime that the United States decided to define out of criminality -- blasphemy, that is, treason against the gods. It's still possible to incur a harsh penalty here for robbing a church, but not a higher penalty than for robbing a store; for burning a church, but not because it expresses hatred towards God but because it expresses hatred towards men. 

For the Greeks, however, blasphemy was still the highest possible crime. It was the one for which Socrates was executed; we usually hear it said that he was guilty of 'corrupting the youth,' but the particular way he was supposed to be guilty of corrupting them was religious. (Perhaps contemporary readers assume this is a euphemism for sexual immorality with the youth, as priests sometimes get up to today, but this is not at all true: recall Socrates' gentle reproof of Alcibiades.) He was accused of "failing to acknowledge the gods that the city acknowledges" and "introducing new deities." Neither charge was quite fair, but alleged blasphemy was what convinced the Athenians to kill him. 

The Athenian in the dialogue first wants to make clear that he thinks it is a shame even to have to talk about a judiciary, as it assumes that crime might occur even in a population as completely devoted to virtuous training as the one they are attempting to construct. He allows that slaves and foreigners in the community might get up to some bad things, however, not having the fullness of citizen training. Yet the truth is that he knows citizens will as well, because he goes on to construct systems for punishment of citizens that are different from the ones for slaves and foreigners. Even in pre-Christian Greece, the fallen nature of mankind was obvious. 

The punishments for blasphemy for the slaves and foreigners, etc., are very harsh but leave them with a chance to go elsewhere and try again -- although they will be branded on both their hands and forehead with a mark that indicates them to be blasphemers, which will presumably somewhat impair their fortunes. Citizens of course are to be executed, and buried 'in silence, beyond the border.' The Founders and Plato did hit upon one common note in that both ban what the Constitution calls 'corruption of the blood.' The children and other relatives of the condemned receive all of his property, and an honorable name so long as they do not repeat his errors. The family's approximate equality in the community is to be maintained; the Athenian notes that, even in lesser cases punishable by fines, fines may not exceed the amount that would reduce the family below the basic level of wealth all households are to be allotted. (In such cases, corporal punishments will have to do instead; not exile or outlawry, however.)

More important than the punishment is the form of the trial. It is similar to the way elections were to be done in that it is supposed to be repeated over three days, finalized only at the end. 

First of all the plaintiff shall make one speech, and then the defendant shall make another; and after the speeches have been made the eldest judge shall begin to examine the parties, and proceed to make an adequate enquiry into what has been said; and after the oldest has spoken, the rest shall proceed in order to examine either party as to what he finds defective in the evidence, whether of statement or omission; and he who has nothing to ask shall hand over the examination to another. And on so much of what has been said as is to the purpose all the judges shall set their seals, and place the writings on the altar of Hestia. On the next day they shall meet again, and in like manner put their questions and go through the cause, and again set their seals upon the evidence; and when they have three times done this, and have had witnesses and evidence enough, they shall each of them give a holy vote, after promising by Hestia that they will decide justly and truly to the utmost of their power; and so they shall put an end to the suit.

Note that for citizens this is almost a trial by jury. The judges will be their peers, citizens like themselves, and if I have understood correctly they should be 12 in number -- one from each of the major divisions of the city of 5,040 households. Evidence and witnesses are a kind of afterthought; the main action is more like a Supreme Court proceeding, with each judge questioning the two sides until they are satisfied. It differs from our Supreme Court in that they get three bites at the apple, in case the questioning from one day raised an issue they want to ask about later. It differs from a jury in that a majority vote decides it, rather than unanimity as our juries require.  It also differs in that the functions of judge and jury are not separated, but combined.

For aliens and slaves, the process looks much less happy just because the judges are not their peers. The judges come from a class that views itself as superior to them, and that looks down upon them as lowly characters in need of control rather than fellow citizens possibly falsely accused, possibly in need of correction. However, as a practical matter this is more like our own system than not. Most of the cases that come before the court are of relatively poor people, lacking the fine education of the judge and the lawyers acting as prosecutor and defense attorney. Only occasionally do they end up trying one of their own "class," and I think it is fair to say that they tend to be far less harsh even when they render a guilty verdict; and also that they do so far less often.

This problem of factionalism among the classes concerned Aristotle; Plato will address it in the writings on treason, which I will save for tomorrow.