Sunday, September 21, 2014

Nomoi (Part III: City in Speech)

Book VI

Having established the preliminaries, the Athenian Stranger turns to the first element of city organization: competent officials to administer law. Incompetent officials can can make even good laws harmful. This is an especially acute problem when we are dealing with a new colony, since you have all sorts of different people thrown together, likely for the first time, and thus you cannot rely on education and background. The Athenian's solution is to leverage the colony's close connection to Knossos, which will serve as a sort of guardian or ward of the colony as it is designating its first officials.

I will not go through all the institutions here. Officials are to be elected by an Assembly (ekklesia) of all the citizens. They elect thirty-seven Law-Guardians (nomophylakes), all over fifty, who are exactly what their name suggests -- they oversee the maintenance of law. They have minor disciplinary powers and some important but very restricted judicial powers; although the Stranger does not give details, it seems their most essential function would be just to give a certain amount of transparency or accountability to everything, so that abuses can be easily discovered and, even more important than this, people are regularly reminded of the way things should be. There is a Council (boule) of ninety members, distributed among four different property classes, serving one-year terms. It includes both men and women -- men can be elected started at the age of thirty, women at the age of forty. Generals and cavalry commanders are elected from a list put forward by the Law-Guardians. There are lots of other positions concerned with the civil religion, the courts, and the day-to-day administration of the city. All of the elections are organized in an attempt to ensure that there is a sort of equality between citizens, but that this equality is that of each person receiving according to his or her merit.

The Athenian spends some amount of time discussing the laws and customs for marriage, since well-matched marriages are essential to the health of the city: people marrying need to be informed about the background of their prospective spouses, and the Stranger suggests that strictly supervised dances in the nude should be used to get young men and women together. Wedding expense is regulated to avoid competition in luxurious displays. Newlyweds are not allowed to remain at home, but must strike out on their own, with the husband supporting the family. Having children is the major responsibility of the newlyweds, both husband and wife, and they can be publicly admonished if they do not take this seriously; they can also negotiate terms of divorce if children turn out to be possible.

  Additional Remarks

* While men and women are not exactly equal in the colony, since there are some important differences in expectations and requirements for each, there is no area of political power that is off-limits for women. Women have the same basic education as men, attend communal meals like men, are full citizens, can vote in the Assembly, can be elected to office, and, if they have already borne children, can fight in the army. The radicalness of this in comparison with the misogyny of Greek society, in which women had no political power and were treated as minors all their lives, is extraordinary. It is also an explicit and deliberate move. The Athenian Stranger thinks women have less natural potential for virtue than men (perhaps unsurprising given that one of the four main parts of virtue is andreia, manliness), but they do have the capacity for it, and so he insists that it is a defect of any constitution to leave half the human race out of account. He will also argue this in Book VII (804d and following).

Book VII

Having covered the precondition for children being born, the Athenian Stranger turns to the education of children once they have been. He refrains from precise regulation because of the difficulties involved with regulating private family life, and but insists that something, at least advisory, must be said on the subject, because ad education of children can undermine the laws. In the Athenian's conception of the education of children, it begins quite early; to the surprise of his companions, he holds that it begins in the womb, with the mother's physical exercise, and continues outside the womb with what singing and dancing is appropriate to the child's abilities, with a focus on trying to assist the child in not being governed by fear. Clinias and the Athenian end up disagreeing on whether this should include plenty of pleasures; the Athenian argues that one should find a balance of pleasures and pains and that the child should be taught not to seek pleasure in an active way, and Clinias concedes the point. All these things, however, cannot be laws in the usual sense; they have to be unwritten, and work like immemorial custom, if they are to work at all.

As the children get older, more specific physical training is required -- horsemanship, archery, javelin-throwing, and the use of the sling; boys should be required, and the girls allowed, to attend any lessons, although boys should be taught with boys and girls with girls. This prepares for serious training in dancing and wrestling. The Athenian also argues, at considerable length, that one should discourage any significant changes in the games children play, to avoid teaching children a taste for novelty as such: the nomoi (songs) have become nomoi (laws), and so there should be a standard public canon lest lawlessness be discouraged (709e-800a). Given the difficulty of rule-making in this kind of situation, however, the Athenian proposes that there should be model laws to be the mold or impression for shaping other actions.

The Athenian then gives an extended argument that women should be given the same training as men, including at least some training for the military, and discusses various issues concerned with cultivating an appropriate work ethic. Literature is to be studied using model works, like the Laws itself (811c-e). Astronomy is to be quite important, because it studies "the gods of the heavens" (821c). And the Athenian ends the discussion of education by looking at regulations for hunting.


The next item on the agenda is "a program of festivals to be established by law" (828a). The Athenian argues that there are to be sacrifices every day, as well as twelve major festivals to honor the Olympian gods. In addition, there are to be festivals to the gods of the underworld, which, however, are to be kept separate from the Twelve. One day a month there should be a festival with war games, to be pursued with as much spirit as athletic competitions, and focused on cooperation and teamwork. Two things tend to interfere with teamwork in the city at large: pursuit of wealth and partisan spirit. Thus one needs the proper constitution to encourage this kind of military training for the citizens.

Sexual matters, which are next, are a complicated question. They must be kept in order: "Reason, which is embodied in law as far as it can be, tells us to avoid indulging the passions that have ruined so many people" (835e). But finding a remedy for sex-driven disruption of the common welfare is difficult. The sexual loves you need to encourage are those that are not focused on the body, but on the soul and character, and that are had between virtuous people. Megillus agrees fairly easily with this, although Clinias is more reluctant. The Athenian argues that one should try to make it so that unimproving loves are treated like incest, a disgusting abomination; and, in particular, sex should only be allowed when it is for procreation. He recognizes that young men would have difficulty accepting this, but thinks that sufficient religious support will get around this. The young should be encouraged to conquer pleasure, and given the support they need in order to do so.

After sex, agricultural laws are considered, including the importance of not moving boundary stones and respecting the land of others. Then we have laws governing craftsmen and artisans.

  Additional Remarks

* It's notable how concerned the Athenian is with avoiding intrusiveness into most of the matters discussed in this Book; the kinds of laws found here would not have been unheard of in Greek cities, and the focus here tends to be on indirect persuasion. The point of all of the laws discussed, of course, is to encourage people to maintain the priorities indicated in the general prelude, i.e., maintaining the greater importance of the soul than the body, and of the body than possessions.

Book IX

Book IX continues the discussion of particular laws by focusing on serious prosecutable acts and the penalties they should receive. The Athenian notes that having to do this at all is already a sign that the laws have in some way failed; but as we legislate today for men rather than demigods, it is a necessity. Punishment will be a big part of the argument, so I will mostly highlight matters concerned with legal penalty.

The first prosecutable offense discussed is robbery from temples. In the course of discussing the penalty (branding on face and hands, plus flogging, plus exile), the Athenian remarks that in punishment one attempts to make the person undergoing the penalty either more virtuous or less wicked. He also notes that punishment is a way to make the wrongdoer of service to others; "he will be of service to others, by being a lesson to them" (855a). He also argues that the children of a wrongdoer, if they do not follow in the footsteps of the parent, should be given honors for their example.

If a crime requires a fine, then if the person is not able to pay it, imprisonment or some other temporary penalty (like standing or sitting in public for all to see one's wrongdoing) should be given; but nobody is ever to be deprived completely of the rights of the citizen, even if he is banished from the city.

After the serious religious offense comes the serious political offense; subversion, either through stirring up actual sedition or through negligence in the face of sedition of someone in an official role charged with maintaining the city. No penalties of fathers are to be visited on children with the exception of cases where the child's father, grandfather, and great-grandfather have all committed capital crimes; in which case the children should be returned to the original home city from which the original colonists in the family came.

The next crime is theft, which the Athenian says should all receive the same penalty, namely, payment of twice the value of the property stolen. Clinias balks here, however, protesting that it makes no sense to give all theft the same penalty, and that every other code of laws takes into account all sorts of circumstances surrounding the theft. But the Athenian reminds the Cretan that they agreed that the laws were not merely to be imposed on the citizens by force; they were to be seen as tutoring the citizens, as well, and gaining their voluntary compliance by persuasion. The Athenian claims that nobody is willingly unjust, so the common distinction used in the laws of Greek cities between involuntary and voluntary justice has no place. But the distinction does seem to be getting at something, namely, the difference between laws concerned with injustice and laws concerned with injury. The Athenian proposes a general policy:

...when anyone commits an act of injustice, serious or trivial, the law will combine instruction and constraint, so that in the future either the criminal will never again dare to commit such a crime voluntarily, or he will do it a very great deal less often; and in addition, he will pay compensation for the damage he has done. (862d)

The point of law is to teach people to pursue justice and hate injustice; although the death penalty is admissible, it is only to be used for incurable cases.

With this in mind, he moves on to discuss homicide. In cases of premeditated murder, he identifies three major causes of the crime: the first is desire (epithymia), especially for wealth; the second is ambition (philotimia); the third is fear (phobia). He also argues that the citizens should actively be taught that they will be punished for this crime in the afterlife; when they are reincarnated, they will by a law of nature experience the same fates as their victims. If this does not deter, the crime of premeditated murder should be handled in the same way and by the same punishment as temple-robbery. A similar kind of process handles murder specifically of a relative. Suicides, as murderers of themselves, should receive dishonorable burial. The Athenian proposes, however, that if someone kills someone else in self-defense, or in retaliation for rape, or in the process of defending an innocent family member, that he should be considered innocent before the law.

Next comes maiming and wounding. If it is premeditated, it is to be treated as murder, but out of respect for the spirit that prevented it from ending in death, it should fall short of receiving the capital penalty. Striking a parent, being a significant impiety, is to be sharply punished.

  Additional Remarks

* The Athenian in passing argues against thinking of death as the most extreme penalty; the most extreme penalty is punishment in the afterlife. He doubts that either has a deterrent effect on some people, though.

* One of the key themes of the Laws comes out quite clearly in some of the discussions of penalties: laws that are properly designed do not merely coerce, they persuade. Punishments in particular are to be designed so as to warn citizens. Note that this is not deterrence; it is difficult to imagine Plato thinking a deterrent theory of punishment anything other than an abomination -- punishment may deter, but as a legislative matter, if you are already at the punishment stage, you have already missed the point at which deterrence was supposed to be a major concern, and you have, moreover, failed. The goals of punishment are instead educative: (1) to teach citizens in general the priorities of the city; and (2) to rehabilitate lawbreakers by teaching them what is just and what is unjust, if that is possible. Temple robbery and murder and assaulting parents are given severe punishments in order to make clear what the common good of the city is. Failing to do so would teach the citizens that they are no great matters, leading to the deterioration of the integrity of the city as citizens stop prioritizing goods properly. This conception of punishment as educative will become highly influential in ancient philosophy.

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