Plato on Punishment

Plato on Punishment Gorgias and Rehabilitation

Noah Farley

Modern debates as to the proper nature of punishment typically devolve into two questions. First, ought we to punish for utilitarian or deontological reasons? Second, ought we to punish harshly (so as to deter) or less harshly (so as to rehabilitate)? 1 In the Gorgias, Plato provides a helpful contribution to this debate. In his argument that punishment is beneficial, Socrates presents the idea that punishment “cures” a moral ill in the soul of the wrongdoer and is justified based on the good it does for the criminal. In this paper, I will argue that Plato’s theory can only function if a society successfully imports moral meaning into punishment. I will conclude that even though rehabilitative theories were not available conceptually to Plato, his conception of punishment-as-cure provides an effective moral foundation for such theories.

Plato’s argument in the Gorgias is that punishment is a good for the soul of the punished. This is for the simple reason that immorality is an evil that afflicts the soul and is made better by punishment. 2 Paying the penalty for your crimes is thus a way of remedying a disease in the soul. 3 More than that, immorality is the worst disease. This means that being cured of it is not only a good but one of the best goods. 4 Socrates’ conclusion is that if we want good done to our friends and evil to our enemies, then we ought to use rhetoric to cause our friends to suffer

1. See Mike C. Marteni, “Criminal Punishment and the Pursuit of Justice,” The British Journal of American Legal Studies 2, no. 2 (2013): 266. 2. Plato, Gorgias, trans. Robin Waterfield (Oxford: Oxford University Press, 1994), 477a. 3. Ibid., 474c-476a. 4. Ibid., 478d-e.

punishment and our enemies to avoid it. 5

But why is punishment good for the soul? Plato justifies this by presuming the wrongness of our actions and the rightness of the state’s punishment. 6 This is critical because Plato provides no external moral justification for punishment outside of the standards implemented by the state. 7 He repeats his assumption in the Crito dialogue, which seems to explicitly accept the moral judgments of the state as ruling and worthy of being followed. 8 From this we conclude that the critical factor in Plato’s doctrine of just punishment (such as it is) is that the state produces legitimate standards for punishment, which will then be acknowledged by all parties. 9 Without this legitimacy, the punishment becomes no more than an exercise of power, losing all its curative benefits for the soul.

We can misread Plato’s apparent ambivalence toward the intersection of justice and punishment in the Gorgias in two ways. We can assume, incorrectly, that Plato is in some way a moral relativist. On the contrary, he certainly believes that justice is a transcendent value, and he certainly believes states ought to uphold that standard. He does not engage in the project of justifying that belief in this dialogue—his argument can work while assuming that the socially des

5. Plato, Gorgias, 480a-481b. 6. Plato deals with both in Crito, where Socrates argues that the laws must be obeyed because the government that enacted them is legitimate and that they should be opposed only in the proper channels. To go against the law would be to reject the judgment of the entire community and to place one’s own idea of justice above that of the entire polis. From Crito we learn that Socrates would follow an unjust law willingly and accept the punishment as decided by the community even though he disagreed with it. There is no echo of Thoreau here. See Plato, Crito, trans. C.D.C. Reeve, in Classics of Moral and Political Theory, ed. Michael C. Morgan (Indianapolis: Hackett Publishing Company, 2011), 50a-54e. 7. While Plato does seem to believe in a standard of external justice for the laws of the state, he does not justify the actions of an Antigone in resisting the rule of the state on the grounds that the laws are unjust. The connection between law and justice is generally assumed. Plato directly connects the suffering of the punished to the penalty enacted by the state. See: “Would you agree that there’s no difference between a criminal paying the penalty for his crimes and being justly punished for them?” (Plato, Gorgias, 476a). 8. The existence of unjust laws which lead to unjust punishments would not seem to bear particularly on the moral education theory that Plato presents. Because the offender can always reject the judgment of the law and refuse to reorder his soul according to its dictates, an innocent person facing punishment under an unjust law can internally resist the moral education of punishment. Nevertheless, for Socrates, it makes sense to say that the laws propagated by the state are generally just and to make his argument on that assumption. 9. This separates him immediately from the explicitly utilitarian theorists, who often favor punishments which are unlinked to concepts of teleology or even responsibility. Rehabilitationists who favor indefinite punishments (that is, until the offender is cured) do not see the offender as a rational being capable of choosing good and evil outside of his environment, and deterrence theorists see the offender primarily as a proxy for accomplishing larger social goals. See C.S. Lewis, “The Humanitarian Theory of Punishment,” Issues in Religion and Psychotherapy 13, no. 1 (1987), https:// scholarsarchive.byu.edu/irp/vol13/iss1/11.

ignated punishment is just. 10 We can also mistake Plato’s discussion of his own judicial system to be an endorsement of retributive theory. He mentions near the end of the above discussion that “We should submit to the lash, if that’s what the crime warrants, or to imprisonment, if that’s what we deserve. If we’re fined, we should pay up; if we’ve earned exile, we should go; if the penalty is death, we should let ourselves be executed.” 11 This statement, which seems to assume that such harsh punishments are what is deserved, can seem like an endorsement of the retributive theory. However, Plato never claims that the moral prescriptions of the Greek city-states are normative. Moreover, we should not mistake a similar harshness of punishment for a similar motive. 12

Plato’s argument for punishment in this dialogue can be called the moral education theory. 13 In the words of Jean Hampton, moral education theory holds that “Wrong occasions punishment not because pain deserves pain, but because evil deserves correction.” 14 For the Socratic justification of punishment to work, the key party which must accept the punishment as just is the wrongdoer. This is implicit in Plato’s argument—particularly in the analogy to the medical treatment of the body. 15 Just as the patient must accept the legitimacy and authority of the doctor to receive treatment for his body, the criminal must accept the legitimacy and authority of the state to punish him in order for him to receive treatment for his soul. 16 We need not imagine criminals who remain in rebel

10. In the Republic, he more directly engages in this project, of course. The first definition he critiques is that of doing good to your friends and evil to your enemies, which is problematic because (1) one can be wrong about who those are and (2) hurting someone makes him more unjust, which the just ought not be able to do. There seems to be a contradiction between the second argument here and the argument made in Gorgias. It is entirely possible in the Republic that he means that the just ought not to take justice into their own hands (without the agency of the state), analogous to what Christ refers to in the Sermon on the Mount, while in the Gorgias he refers to a particular context of justified state punishment. See Plato, Republic, trans. C.D.C. Reeve, in Classics of Moral and Political Theory, ed. Michael C. Morgan (Indianapolis: Hackett Publishing Company, 2011), I.331d-336a. 11. Plato, Gorgias, 480b-c. 12. Plato’s later theory of punishments, as expressed in The Laws, seems to be premised on the idea that harsh penalties are good for the soul. As in the Gorgias, the main thrust of that part of the dialogue is that the punishment is good for the soul and it is justified for this reason. How harsher penalties (those typically associated with retributive theories) are good for the soul is largely left unargued. See Nicholas R. Baima, Internet Encyclopedia of Philosophy, “Plato: The Laws,” https:// www.iep.utm.edu/pla-laws/. 13. There is dispute as to whether Plato’s argument falls into the realm of moral education theory. See M.M. McKenzie, Plato on Punishment, as cited by Jean Hampton, “The Moral Education Theory of Punishment,” Philosophy and Public Affairs 13, no. 3 (1984), https://www.jstor.org/ stable/pdf/2265412.pdf?ab_segments=0%2Fbasic_SYC-4631%2Ftest. 14. Hampton, 238. 15. Plato, Gorgias, 478b-c. 16. Marteni describes this as a structural problem for the theory of rehabilitation writ large—

lion against the state despite punishment. The perennial problem of recidivism evinces that. If we wish “that the kind of benefit [the criminal] receives if his punishment is just is that his mind is made better,” then we must be sure that the criminal recognizes the punishment as just and is ready to have his mind made better. 17

This function of moral education can operate independently of the particular iteration of the criminal justice system in question. Alcoholics Anonymous asks participants to believe in a higher power and to trust in that higher power as a key part of the program. 18 This does not require a particular doctrine of God, or even a meaningful belief in Him; it is entirely possible for atheists and agnostics to participate in the program. Similarly, the benefits of moral education through punishment can be achieved as long as the criminal believes the penalties he is suffering are the just reward of his crimes, regardless of whether they actually are. 19 Since the criminal’s healing is accomplished in the soul, the benefits of punishment can accrue to the punished as long as the criminal accepts the state’s punishment as just.

This can be phrased more strongly in a positive sense. To draw the Christian allegory, the punished soul could, depending on his attitude toward the punishment, be either in hell or purgatory. It is the response of the sufferer that makes the difference in the punishment’s effect. As Dorothy Sayers writes in her introduction to Dante’s Purgatorio, “The sole transforming difference is the mental attitude of the sufferers. . . .If a man is once convinced of his own guilt, and that he is sentenced by a just tribunal, all punishment of whatever kind is remedial, since it lies with him to make it so; if he is no so convinced, then all punishment, however enlightened, remains merely vindictive, since he sees it so and will not make it otherwise.” 20 Punishment as moral education rests on the offender’s choice to see it as such.

I do not mean to say that the retributive theory of justice is incorrect; I mean merely to say that Plato’s justification of punishment in Gorgias as moral education does not on its own justify the retributive theory. Retribution itself, or something like it, does seem to be assumed by Socrates in this dialogue. Al

that the criminal must willingly accept rehabilitation and it cannot be forced upon him. This is a similarity with the moral education theory, except that the moral education theory strengthens the impossibility of forcing change in the soul, for reasons that I will touch on later. See Marteni, 292. 17. Plato, Gorgias, 477a. 18. Alcoholics Anonymous Publishing, “The Twelve Steps of Alcoholics Anonymous,” 1981, https://www.aa.org/assets/en_US/smf-121_en.pdf. 19. I mean that to access the benefits to the criminal, he must believe it at least approximates justice, not require it to match up with precisely with his conception of natural law. 20. Dorothy Sayers, introduction to Dante, The Divine Comedy 2: Purgatory, trans. Dorothy Sayers (London: Penguin Classics, 1955), 15-16.

though he asks: “Would you agree there’s no difference between a criminal paying the penalty for his crimes and being justly punished for them?” this question is unnecessary for his later argument. 21 His occasional references to fairness and justice in punishment do not bear on the aim or benefit of punishment as moral education. Even if they did play a part in his more complete theory of punishment, they do not in the theory presented in Gorgias.

Nor do I mean to say that all kinds of punishment are equally valid. Under this theory, many factors would need to combine for a punishment to be effective in moral education. This includes a complex of beliefs about the state’s claims to legitimacy, the society’s beliefs about justice and morality, and the traditional connection between the legal and the moral. 22 Furthermore, there are multiple utilitarian reasons to justify punishment which must be considered, some of which are more compatible with the moral education theory than others.

This leads us to the second part of my argument. In Plato’s moral education theory we are provided with a teleological reason to focus our punishment on particular utilitarian ends. Rather than judging them based on their contribution to overall societal happiness, we can judge them by their contribution to the end of punishment.

If punishment is understood to be good for the soul, then the theory of rehabilitation becomes easier to justify on teleological grounds. This is because rehabilitation openly admits of a constructive purpose of punishment in the same way that Plato does. If we punish because it is good for the person punished, then as long as we do not undermine the moral education, the theory gives us significant grounds to design the punishment to accomplish societal and individual goods. The question is whether the particular rehabilitative practices will enhance or undermine moral education.

The governor of Norway’s Bastoy prison, a world-famous example of rehabilitation, describes the concept of punishment in that system: “In the law, being sent to prison is nothing to do with putting you in a terrible prison to make you suffer. The punishment is that you lose your freedom.” 23 The point he makes is that even in a system that favors rehabilitation, there is still a punishment that

21. Plato, Gorgias, 476a. 22. It is conceivable that in a society in which the phrase “you can’t legislate morality” is common currency, the link between law and justice is severed or so weakened that moral education through the justice system ceases to operate altogether. In this case people would primarily see the justice system as a utilitarian institution designed to keep some degree of order in society. People thus freed from a moral obligation to obey the law would be more likely to stay in rebellion against the criminal justice system, particularly if it is seen to be plagued with systemic injustice. 23. Christina Sterbenz, Business Insider, “Why Norway’s Prison System is so Successful,” December 11, 2014, https://www.businessinsider.com/why-norways-prison-system-is-so-successful-2014-12.

satisfies the demands of justice. In this system, the criminals still suffer and for that reason still experience the consequences of a disordered soul. They can still be morally educated. The legitimacy of state punishment is maintained. The link between law and justice that Plato and Aristotle both recognize can still exist in a rehabilitative system.

This is not to say that Plato would necessarily endorse rehabilitation. In its modern iteration, it did not appear to be on his conceptual horizon. What Plato works with is a system that he understands to be retributive in nature, and he argues that this system (punishment with the goal of retribution) is counterintuitively good for the criminal. Plato’s arguments would not prima facie support a rehabilitative system, but the arguments he makes, perhaps unintentionally, provide a strong teleological basis for such a system.

Curiously enough, in his last dialogue The Laws, Plato seems to suggest that the direct purpose of punishment is the cure of the offender of the injustice which led him to commit the crime. By the time we reach The Laws, Plato seems to have fully rejected the retributive theory of punishment and produced a code which explicitly sanctions a kind of rehabilitation, though he would not use that term. See this passage in particular:

The cases that are curable we must cure, on the assumption that the soul has been infected by disease…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 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…We may take action, or simply talk to the criminal; we may grant him pleasures, or make him suffer; we may honor him, we may disgrace him; we can fine him, or give him gifts. We may use absolutely any means to make him hate injustice and embrace true justice – or at any rate not hate it. 24

Here, Plato seems to be making the argument that in punishment, the means used to make the criminal hate injustice are discretionary. This bolsters my argument that Plato would consider some rehabilitative measures to be acceptable.

Rehabilitation adds to the benefits provided to the criminal by providing him with education. This comes in the form of both moral and practical education. Rehabilitation includes the teaching of particular job-related skills which criminals often lack. It also often includes instruction on moral and psychological issues through counseling. In fact, rehabilitation has conceptual room for an

24. Plato, The Laws, 862c-d.

explicit attempt to convince prisoners that their punishment is just and for their own good.

It is important to note that the moral education view also puts limits on the theory of rehabilitation we can employ. In this view, whatever rehabilitation programs we employ cannot be created to “cure” the offender of some disease. As Hampton argues, we cannot punish someone indefinitely without undermining our ability to convince the prisoner that the punishment is just. 25 Because the fundamental benefit of punishment is his to accept or reject, the state is required to engage with him as a rational being capable of choice. 26 The full implications of this theory of punishment as moral education on rehabilitation are beyond the scope of this paper. However, it is fair to say that such a system would be constrained to be far more humane than that favored by the most extreme of the rehabilitationists.

25. This is a concept some rehabilitationist theorists have endorsed: to keep the criminal in prison until his lesson is taught. See Hampton, 233. 26. Ibid.

Alcoholics Anonymous Publishing. “The Twelve Steps of Alcoholics Anonymous.” 1981. https://www.aa.org/assets/en_US/smf-121_en.pdf

Baima, Nicholas R. The Internet Encyclopedia of Philosophy. “Plato: The Laws.” https://www.iep.utm.edu/pla-laws/.

Hampton, Jean. “The Moral Education Theory of Punishment.” Philosophy and Public Affairs 13, no. 3 (1984): 208-238.

Lewis, C. S. “The Humanitarian Theory of Punishment.” Issues in Religion and Psychotherapy 13, no. 1 (1987), https://scholarsarchive.byu.edu/irp/vol13/ iss1/11.

Marteni, Mike C. “Criminal Punishment and the Pursuit of Justice.” British Journal of American Legal Studies 2, no. 1 (2013): 263-304. https://bcuassets. blob.core.windows.net/docs/BJALS-Volume-2-Issue-1.pdf.

Plato. Crito. Translated and Edited by C.D.C. Reeve. In Classics of Moral and Political Theory, edited by Michael C. Morgan, 64-71. Indianapolis: Hackett Publishing Company, 2002.

———. Gorgias. Translated by Robin Waterfield. Oxford: Oxford University Press, 1994.

———. Republic. Translated by C.D.C. Reeve. In Classics of Moral and Political Theory, edited by Michael C. Morgan, 75-251. Indianapolis: Hackett Publishing Company, 2004.

———. The Laws. Translated by Robert J. Saunders. London: Penguin Books, 1970.

Sayers, Dorothy. Introduction to Dante, The Divine Comedy 2: Purgatory, 9-71. Translated by Dorothy Sayers. London: Penguin Classics, 1955.