Penal Modernism Before Modernity

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Citation Abolafia, Jacob Samuel. 2019. Penal Modernism Before Modernity. Doctoral dissertation, Harvard University, Graduate School of Arts & Sciences.

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A dissertation presented by

Jacob Samuel Abolafia

To

The Department of Government

in partial fulfillment of the requirements

for the degree of

Doctor of Philosophy

in the subject of

Political Science

Harvard University

Cambridge, Massachusetts

May, 2019

© 2019 Jacob Samuel Abolafia

All rights reserved.

Dissertation Advisor: Professor Danielle Allen Jacob Abolafia

Penal Modernism Before Modernity: Correction and Confinement in the History of Political Thought

Abstract

The prison is a political institution. It is even said to be one of the paradigmatic instruments of specifically modern forms of social and political control. The task of this dissertation is twofold. It aims to stress the way in which the prison, like the other institutions of political life, has been a subject of inquiry in the history of political thought. And it aims to show that this history is much longer than has hitherto been supposed to be the case. The existence of this broader story, it is suggested, may require us to reexamine some unquestioned assumptions about the distinction between modern and premodern political institutions.

The dissertation begins by considering the evidence for the regular use of penal incarceration before the modern era. The first chapters take up the evidence around imprisonment in 4th century Athens, canvassing both the literary and oratorical evidence, as well as the theoretical discussion of punishment in general, and incarceration in particular, in Plato.

The fulcrum of this evidence is Plato’s imagined prison system in the Laws. The Laws, with its focus on the non-ideal and its attention to the minutiae of legislative design, provides both an influential account of custodial punishment as education, and an unnoticed theory of the tension between social change and political institutions.

The ancient texts examined in the first half of the dissertation would, on their own, be a useful comparative case study in the logic of incarceration. But the early instance of a theory of incarceration and the latter era of prison building are also connected by several historical-

iii philosophical threads. The second part of the dissertation follows these threads into the modern period. The fourth chapter shows how Thomas More’s Utopia owes much of its theory of punishment, including the use of rehabilitation and its non-ideal approach to institutions, to

Plato, and particularly to the Laws. More’s literary-philosophical method was, in its way, as influential as Plato’s, and his addition of labor to the custodial regime of the prison marked a turning point in modern punishment. The dissertation concludes with a re-examination of the most well-known modern theorist of incarceration, the utilitarian philosopher Jeremy Bentham and his Panopticon prison. The chapter finds a fundamental contradiction in Bentham between the liberal (or democratic) principle of lesser intervention and the subtle, but persistent tendency in Bentham’s thought towards a comprehensive spectrum of education and punishment not unlike what was uncovered in More and Plato.

Before the prison became a complex, before incarceration captured the state itself, imprisonment was an idea, a set of principles for the design of political institutions. The classical agreement around the idealized mission of state punishment seems a far cry from today’s carceral state. But if Plato’s theory of rehabilitation and More’s account of labor as utilitarian reform do not reflect the contemporary practices of warehousing and incapacitation, they do reflect elements in the 18th century milieu traditionally identified with the “birth of the prison.”

This dissertation will suggest that the real disjunct in the history of penal theory is not between

Plato and More or More and Bentham, it is between Bentham and ourselves.

iv

Table of Contents Acknowledgements vii References x Introduction: The prison between antiquity and modernity 1 Chapter One: Incarceration in Democratic Athens Revisited 25 I. The historical context for the Athenian prison 26 II. Demosthenes’ Against Timocrates and democratic punishment 31 1. A primer on punishing democratically 31 2. Democratic strategies for contesting incarceration 34 III. The future-directed nature of democratic punishment 45 Conclusion 51 Chapter Two: Incarceration as Theory and Practice in Plato 54 I. The Prison in the Laws 55 1. Prisons 55 2. Atheists 57 3. Moral Flaws and Forms of Punishment 59 4. The Nocturnal Council 67 II. Punishment as a Paradox 69 1. “It is better to be punished than to go unpunished” 69 2. The means of punishment (I) 74 3. The means of punishment (II). 76 III. The Myth of the Prison 81 1. The Gorgias myth 81 2. Punishment in other eschatological myths 85 3. From myth to prison 90 IV. The Moral Psychology of Incarceration 96 1. The non-rational psychology of traditional punishment 100 2. The rational psychology of incarceration 103 Conclusion: Incarceration and Plato’s Social Thought 108 Chapter Three: Shame and the Social Theory of Incarceration in Plato 110 I Shame culture and its preconditions 111 1. The Laws and shame culture. 111 2. The Social Theory of Shame 119 II. The social basis of shame: A reading of Euripides’ Hippolytus 125 1. Williams’ reading 125 2. Shame and the social world: An alternate philosophical analysis 126 III. Shame and Incarceration: Back to the Laws 133 1. Shame and political decline 134 2. Atheism, oaths, and the prison 136 Conclusion: The prison of the Laws as an institution of correction 143

v Chapter Four: Incarceration in Thomas More’s Utopia 148 I. Why More – context and form. 149 1. Plato as contemporary 149 II. More’s institutions of correction 155 1. Platonic strains in Utopia. 155 2. Institutionalism in Utopia 158 3. Correction and punishment in Utopia 160 4. Labor as a technique of punishment 173 III. The sources of rehabilitative penal servitude in More 174 1. The classical view of labor 174 2. The origins of penal incarceration 176 3. Labor as reformative 178 Conclusion: From More to the Modern Prison 181 Chapter Five: The Nudge and the Prison Cell, Bentham’s Frugal Institutions of Correction 184 I. Bentham on Punishment 187 1. Punishment as proportionality and frugality 187 2. Punishment as intervention 193 II. Intervention, Incarceration, and the Panopticon 200 1. Incarceration before the Panopticon 200 2. Bentham’s total institutions 204 3. Management and economy in the Panopticon 210 III. The paradox of liberal correction 219 1. Between rehabilitation and social engineering. 219 Conclusion: The rationale of incarceration 233 Conclusion: The decline of penal modernism 236 Bibliography: 245

vi Acknowledgements

I have spent the last several years fantasizing about the opportunity to thank the people who accompanied me through my graduate life. Now that I have the opportunity to do so, I fear both the inadequacy of my words and the failure of my memory to call up every instance of kindness, support, and encouragement that allowed me to put these words on these pages.

As a materialist, I will start with the organizations and institutions that supported my work, especially the Harvard Center for Jewish Studies and the Edmond J. Safra Center for

Ethics at Harvard. The former supported many summers and winters of work, the latter an especially important year of relief from teaching. Thanks is also due to the Edmond J. Safra

Center for Ethics at Tel Aviv University for welcoming me a year early, and the Academic

College of Tel Aviv-Jaffa, whose library provided a locus amoenus for an American abroad.

Almost every piece of this dissertation was presented, in some form, to the Harvard Political

Theory Workshop, a convivial community of colleagues and friends. Parts were also presented to helpful audiences in Tucson, Boston, Tilberg, and the Harvard Safra Center,

Among mortals, my thanks go first to my committee. To Danielle Allen, who came to

Harvard at the most propitious moment possible for this project, and who gave me permission to range far afield. As the foremost expert on the politics of ancient punishment, if she thought

Plato could be profitably and rigorously compared to Bentham, I felt I could think it too; to

Richard Tuck, who continually inspires me to write historically without writing narrowly and who taught me as much about the history of political thought in my years of teaching for him as I learned in the rest of my graduate education combined; and finally to Bernard Harcourt, who

vii joined my committee in an act of faith, always asked the right question about each chapter, and, at one, crucial late moment, set the entire project of the dissertation aright.

Several teachers and mentors from my past were equally present during the composition of this dissertation. Steven Smith was my protrepticus, and first opened my eyes to the idea that modernity is a problem, and that it might be the task of political theory to grapple with it. Seyla

Benhabib first introduced me to the dialectic of enlightenment, a dialectic with which I continue to grapple throughout these pages. Special thanks are due to David Sedley, who advised me during the first glimmerings of this project, even if neither of us knew it at the time. What rigor the readings of philosophical texts in this dissertation have is in large part due to them. What is lacking, or wrong, can be traced to my failures as their student.

If, as More and Erasmus liked to say, friends hold all things in common, then this work is as much my friends’ as mine. Some of my oldest friends provided beds and a sense of grounding during my many peregrinations, especially Adam Kroopnick in New York and James Kennedy in Washington. Charles Clavey has been my intellectual companion for almost a decade, and

Raffi Magarik and Yedidya Naveh for longer than that. At least some of my ideas are theirs

(especially the good ones). Shira Telushkin helped provide me with a sense of home during four particularly eventful years – I would have given up long ago without her sensitive and sensible advice. Jon Gould and Becca Goldstein quite simply made graduate school possible, bearable, and at times, even enjoyable (and between them both taught me everything I know about contemporary political science, political theory, criminology and law). Leah Downey and Josh

Simons not only put a (splendid) roof over my head, but also revived me intellectually and spiritually more than once. The presence of these friends reminds me why I study what I do. It is safe to say the dissertation would not exist in its current form without them.

viii I would not exist in my current form without Sydney Levine, who is, as Aristotle has it, my “other self,” and who urges me by her example to try to be as smart, kind, and generous as she is. I was lucky enough to have Francesca Bellei join me in yet another Cambridge, and set me straight about Euripides, among much else. Yoav Shaefer counseled me against despair and continues to be my model of personal, political, and intellectual probity. Hadar Cohen taught and teaches me many things about wisdom and love of wisdom, and brought the spark of real philosophia into my life, asking, like Socrates, could we ever know what makes us better if we didn’t know what we were?

I have been fortunate enough to feel the effects of friendship not only individually, but among more than one community “bound together by common agreement on the objects of our love.” In Somerville there were countless meals, debates, and leisurely walks. In Tel Aviv, a polity, like Plato’s city in the Laws, dedicated to the worship of the Sun, there were restorative visits, shared political struggles, and jasmine-scented nights. Above and amidst all these Earthly cities I must not forget the invisible city of the Saints on Whatsapp.

Lastly, from the community to the home. I owe much to the Jonathan and Anna Rosen, for supporting my family from near and far, and to Alan Abbey and Sheryl Adler, who have been my home away from home ever since I first left home.

This dissertation is dedicated to my family – to my sister, with whom my friendship ripened and richened over the course of my graduate education, and most of all to my parents, who have provided for my every need and desire for so many years, and always nurtured in me the love of finding things out. Dono dedit dedicavit.

ix References

For ancient authors and their works I have tried to follow the abbreviations in the Oxford

Classical Dictionary. References to Plato and Aristotle refer to the Stephanus pagination and

Bekker numbers respectively. The edition of the text used for each work is listed in the footnotes, and all translations are my own unless otherwise noted. For Plato, I will often refer to the translations in the edition of the Complete Works edited by Cooper and Hutchinson

(Indianapolis: Hackett, 1997) and for Demosthenes, to the translations in the Loeb edition

(Cambridge: Harvard University Press).

For the works of Jeremy Bentham, I have tried to cite the most recent edition available, especially when that edition has been published in the Collected Works (1968-present). When I have made reference to the earlier, Bowring edition of Bentham’s work I use the form B

(=Bowring’s edition of Bentham’s works) [Volume, in Roman numerals].[Page, in Arabic numerals]; and when referring directly to Bentham’s manuscripts I have followed the convention

[Library – UC= University College, BL= British Library] [Box number].[Folio number].

x Introduction: The prison between antiquity and modernity

In 1745, the Venetian draftsman and engraver Giovanni Baptista Piranesi published the first edition of his “imaginary prisons” (Carceri d’invenzione). Piranesi’s carceri are dark and cavernous places. They are deep like dungeons but very sparsely peopled, and their stones give the impression of having been freshly swept. Dim lanterns hang off splintering wooden beams whose monumental proportions suggest the immensity of the forces at the command of whatever, or whoever, built this prison. It is hard to say exactly how or why the occasional punishments – in one corner a whipping, in another, a hanging – are being administered; and the small figures, dwarfed by the cyclopean blocks of rusticated stone, are quite anonymous.

The mysterious qualities of these prints – staircases without end (prefiguring Escher), windows that look out into other, vaster interior chambers, have long encouraged a tendency towards abstract interpretations. Thomas de Quincey thought he saw in them the oneiric architecture of “self-reproduction.” Aldous Huxley called them “metaphysical prisons,” the first representations of a particularly contemporary sort of “spiritual confusion and acedia.”

Marguerite Yourcernar noted the occlusion of any sovereign power – divine or terrestrial.1

If the psychology of the Carceri points to modernity, the visual idiom is distinctly ancient

(as one might expect from the engraver of the Views of Rome). Here, one finds a series of arches that seem cribbed from the aqueducts of the campagna, there, a line of elegant dentals accents the ledge of an otherwise sepulchral chamber. In the second edition (1761), these classical adornments have moved to the center of the frame. Statuary crowds formerly empty spaces,

1 For this introduction, I am especially indebted to the essays on Piranesi in (Huxley 1949) and (Yourcenar 1984), pp. 88-128.

inscriptions multiply and friezes appear on columns and archways, firmly affixed to the massive masonry.

This mix of the abstract and the antiquarian have made Piranesi’s prison-sketches among the most perplexing works of 18th century art. Are these inventions merely an ingenious extension of the baroque stage-imagination, the most embellished example of a dungeon trope common in the work of many a well-traveled stage designer? Or are these images the geometric essence of Roman architecture stripped of all context and allowed to run wild, to become archetypes rather than forms? Does Piranesi gather together the most modern tendencies of his own time or are his torture wheels and infernal fires merely a cooler, refracted version of the medieval terrors found in Dante?

Three years after the second edition of the Carceri was printed, and some two hundred miles north, the Milanese nobleman Cesare Beccaria published his Dei delitti e della pena. A little more than a decade later, over the Alps and across the channel, John Howard released the first edition of The State of the Prisons (1777), and a decade after that, Jeremy Bentham began to draft his Panopticon letters. Soon after, England stropped transportation of felons to the colonies, the French revolution transformed the ethos of punishment on the Continent, and the newly formed States of Massachusetts, New York, and Pennsylvania all took up the question of how to build a prison in a democracy. In the thirty years after Piranesi’s prints, incarceration moved off the page and became a fact of political life in brick, stone, and steel. The ambiguity of the prison, suspended between antiquity and modernity, remained.

This wholesale transformation in punishing is often taken to be one of the distinct harbingers of industrial society. From the architecture of Bentham’s prison, clad in metal and glass, to the precise daily regimes meant to restore the delinquent to the social whole as

2 mandated by law in Auburn, Charlestown and Philadelphia, these rapid and radical shifts in imprisonment easily slip into metaphors for the onset of modernity as a whole. Our present practices of punishing (in the U.S. and England, at least), and even the sites at which we punish, are largely traceable to this late 18th century moment, and so if one must pick a point of origin for the “birth of the prison” it makes a great deal of sense to choose this one. But, just as peering into the dusk of Piranesi’s torture chambers, we can make out a stone that would fit right in to

Diocletian’s baths or the Pont du Gard, so too the birth of “penal modernism” conceals within it a marked classical aura.2

One instance of such classicizing influence at the birth of the prison can be traced to

Piranesi himself. The first major effort at a self-consciously modern penitentiary (a prison meant to reform) was the renovated Newgate Jail of 1767-1778, planned by George Dance Jr. Dance had been part of Piranesi’s circle in Rome in the early 1760s, and whether or not he was, as some have surmised, directly influenced by the prison-sketches themselves, the Piranesian elements in

Newgate’s design are unmistakable, from the tastefully rusticated stone, to the judicious use of arch and shadow. The debt was so clear that, at the time, there were even etchings made of the prison’s façade as if it were itself a Roman ruin out of Piranesi’s Veduti.3

The influence of the Eternal City on this golden age of penal reform was not limited to

Piranesi’s sketches. It was a neo-classical house of correction in the Vatican, called the

“Silentium,” that first inspired John Howard’s enthusiastic embrace of solitary confinement and

2 For this felicitous phrase, see (Garland 2002), Ch. 3, where it refers to the early 20th century progressive paradigm that was replaced at the dawn of mass incarceration. That paradigm, of reform and treatment, was in many ways continuous with the 18th century dawn of the prison movement, which was, we will show, itself contiguous with “pre-modern” forms.

3 For this and the following paragraph’s description of the “Silentium” and Howard, see (Evans 1982a), pp. 47-118, esp. pp. 78, 107.

3 rehabilitative silence. Howard, unparalleled in his influence on Anglo-American penal theory, especially liked the monastic slogan over the doorway, which he translated: “it is of little advantage to restrain the bad by punishment, unless you render them good by discipline.” Thus did Catholic penitential chastisement finds its way in to English penal law, and, we might even say, utilitarian moral theory. Howard’s disciple, Jeremy Bentham, was attracted by an aesthetic not dissimilar to Piranesi’s busts and antique figures, adorning his austere and functional prison designs, first with mottos, bas-reliefs and paintings, and later, with the busts and likeness of criminals.4

Piranesi’s prisons, their hybridity and that of their 18th century world, suggest a new way of thinking about the origins of incarceration. Like the Carceri themselves, there is something unprecedented, and fundamentally modern about the way in which penal incarceration went so quickly from being almost unthought of to becoming the punishment beyond which cannot be thought. And yet, this new era of incarceration, was, even at its origin point, deeply entangled in

“pre-modern” images and themes – as were the tools, techniques, and forms of reason that the prison required, made use of, and in some cases helped to bring into being,

In returning to the “birth of the prison,” this dissertation seeks to trouble some of the longstanding distinctions between “modern” post-Enlightenment forms of punishment and the classical tradition of thinking about incarceration, a tradition that has not figured, so far, in debates about our contemporary prisons. Among other aims, we may find that our “penal modernism”, is not so distinctly modern, or perhaps that the classical tradition in punishment is more closely related to our own post-Enlightenment quandaries than we might have expected.

4 B. iv.32 (early plans), UC 107.39 (late ones). See (Semple 1993), Ch. 12.

4 ****

The following chapters construct, from several disparate sources, an account of the early political theory of incarceration. Three of these chapters deal with theorists of punishment and imprisonment in classical antiquity, and two with penal incarceration in early modernity. The effect of such a broad ranging study should be to place the “modern” aspects of the ancient institutions against the “antiquity” of modern ones, allowing details of one to accent the view of the other in a sort of Piranesian unity. More and Bentham, both of whom have been included in genealogical accounts of the prison, are implicated in a set of penological problems and solutions that are recognizable in Plato and related evidence from the ancient world. Viewed against this pretense to coherence, the texture of this study may seem especially uneven, constituted, as it is, by a manifold of different authors, texts, and contexts. The harmony of the work is to be found in certain concepts in loose relation to one another that will appear and reappear in different constellations across all five chapters.

The first of these is the relation between the theory of penal incarceration and a particular family of approaches to the aim of punishment. In each discussion of imprisonment canvassed by this study, whether it originates in an Athenian law court or at a Renaissance writing desk, punishment is presumed to aim at the future improvement of both society and, perhaps counter- intuitively, the person being punished. The stress placed on the second aspect of this doublet varies, but the general affinity between the prison as a penal technique and future-directed philosophical justifications for punishment is consistent, whether in the guise of Bentham’s utilitarianism or Demosthenes’ appeal to democratic political ideology.

Connected to this concern for the future is another, more specific, metaphor for the process of punishment. Long before the “total institution” of the prison/school/hospital/factory

5 identified by 20th century sociology,5 theorists of entirely different backgrounds and inclinations reached for the vocabulary of instruction to explain the aim of punishment and the usefulness of incarceration in achieving those aims. In most of these cases, the emphasis on education is part of a broader institutionalist political theory. Plato, Bentham, and between them, Thomas More, all shared an interest in how political institutions could best be designed to influence the conduct of citizens and inculcate a particular form of practical reasoning. There is an unsuspected affinity across all three thinkers for a pragmatic, hedonistic account of human behavior, and all three advance plans for “educative” legal institutions intended to influence the form of practical reason in use throughout society.6 Chief among such institutions, in all three cases, is penal incarceration.

There are, of course, significant differences to be sorted out in this complex of education/institution/incarceration. Sometimes the “institution” that educates is part of a system of democratic law, as in 4th century Athens. In Plato and More, the institutional system is closed, and, to speak tautologically, utopian in character (although both Plato’s Cretan city and More’s imaginary island have democratic constitutional elements). In Bentham, incarceration partakes of both the democratic and utopian, in different measures. These texts seem to echo one another concerning the potential of law to educate a city, and to use punishment as one of its tools, exists across these authors and across the centuries that divided them (the reasons for these echoes will themselves be an object of inquiry).

5 See (Goffman 1961).

6 To our knowledge, the only other study to note this affinity is (Stalley 1983), p. 55. Stalley makes an off-hand remark connecting Plato, More, and Bentham.

6 Just as the role of democracy changes, so too does the technical content of education. For

Plato, education is intellectual and emotional (insofar as bringing the passions under the rule of the intellect is an aim of both education and punishment). More adopts Plato’s belief in the importance of political emotions, but believes that behavioral change will only come about as the result of hard work (literally, forced labor). In Bentham, labor and education are almost interchangeable, with the proviso that the sort of labor and the sort of education will largely be determined by class.

Another major theme of this dissertation is the complicated relationship between incarceration and enlightenment.7 As we will discuss below, studies of the “birth of the prison” in the 18th and 19th centuries often frame the use of imprisonment as the nightmarish double of enlightenment ideals like equality, the rational improvement of society, and a disenchanted public sphere. In shifting the focus of the intellectual origins of incarceration away from a specific moment in the 18th century, this project engages the question of what aspects of the enlightenment are bound up with the institutional character of the prison, before and after the

18th century moment.

One consequence of pursuing a conceptual approach to enlightenment and political theory (as opposed to a strictly historical one) is the necessity of confronting whether characteristically “modern” or “modernizing” institutions can be analyzed in any context but that in which they were first discovered. Following recent work by Josiah Ober on economic growth

7 In this context, “enlightenment” refers not only to a specific movement in the 18th century, but more broadly to comparable moments of intellectual efflorescence and a concerted interest in non-religious forms of social and natural inquiry. Historians of philosophy often speak of the “Greek” “sophistic” or “Ionian enlightenment” to refer to the growth of interest in diverse forms of rational explanation in the pre-Socratic period. Alternatively, Theodore Adorno and Max Horkheimer use “enlightenment” as a broad term for a form of western means-ends rationality that they also trace to ancient Greece.

7 and political institutions in democratic Athens,8 this dissertation will take seriously the possibility that certain aspects of political modernity can and should be discussed in relation to the 4th century Athenian state. Its method will differ from Ober’s in that, rather than directly comparing the institutional capacities of the Athenian democratic state and the prison-building democracies of the 18th century, it will treat each moment entirely from within its own context, while also tracing out (via the reception of certain, mostly Platonic, ideas about the prison) a genealogical relationship between the two eras.9

This approach will allow us to make salient comparisons between, say, the democratic ideology of gentle punishment as expressed by Demosthenes and the utilitarian arguments for

“frugal” punishment advanced by Bentham, but it will also highlight the very different character of enlightenment without economic industrialization from that of enlightenment when entwined with technological innovation. This is especially apparent in one important shift that is visible over the course of the dissertation, from the relation between education and shame in the early chapters to an increasing stress on labor in the later ones. Shame, and its role in the “face to face” society of the Greek city state, plays a role in the intellectual context of the Greek enlightenment that it does not play at a later moment. Similarly, labor, which is of little consequence in the ancient debate over punishment and politics, becomes a central category of “education” for the later chapters of this study.

8 See (Ober 2008). The approach is developed further in (Ober 2015).

9 The reception of a particular strain of Platonic institutionalism, particularly what emerges from interpretations of the Laws, is a third theme of the dissertation. We have not expanded upon it in this introduction because its analysis in the following pages is notably incomplete. Had we been able to fully describe the role of the Laws in early Judeo- Christian ascetism and theories of soul-craft, as well as to explain more clearly the place of Plato in the early- modern utopian tradition (two of the larger historical lacunae in this dissertation), we would have been much closer to a full understanding of the significance of the Laws in the development of modern penal theory.

8 For all that we have distinguished them here, the “persistent” aspects of this study, like future directed punishment and the education/incarceration complex, are unquestionably tied up in the “contingent” elements. The forms of “educative project” at stake for the different theories under discussion depend on contextually variable social and cultural factors (like the value of labor). The picture of the birth of the prison that emerges here is thus a double one. It is highly contextually contingent – penal incarceration, has only appeared twice in the history of Western political thought, and in decisively different forms. But it is also a story of approaches to the design of political institutions that can be traced across time. Every imagined penal institution in these chapters is different from the others, but the earlier designs are by no means detached from the later ones. The use of penal law to tug at the “golden cord” of practical reason by means of social and political institutions is one of those particularly fruitful dreams of philosophers which, to borrow from Marguirite Yourcenar, engenders other dreams.

****

There is a danger, when tracing the trajectory of an idea, or an institution, of drifting into comfortable abstraction. This dissertation was conceived of, written, and completed in a society riven by the very real fact of mass incarceration. There is no way that a work about the prison written in a political community where one percent of adults reside behind bars can cut itself off from the broader struggle over how to understand the causes, and indeed the nature of the social phenomenon some have called the carceral state.10 The prisons of the United States in the 21st century are the result of more processes than can be profitably discussed in this study, but insofar

10 According to a Pew Report from 2008. (Pew Center on the States 2008).

9 as the many studies of incarceration view the prison’s past as part of its present, this dissertation contributes to the attempt to understand how historical projects of reform became contemporary institutions of social control.

Mass incarceration was first documented by social scientists at the turn of the 21st century.11 Their studies established two major aspects of this novel social phenomenon. The first is the demographic fact that over a four-decade period the United States went from locking up offenders at a rate equal to that of other Western democracies to a point where over seven million Americans were or had been under the custodial care of the penal system, making the

American incarceration rate the highest ever recorded in any state at any point in history 12 The second side to mass incarceration is its distinctly racialized character. African Americans and

Latinos are incarcerated at rates far higher than their white peers.13 Roughly one in three Black men without a college degree will pass through the prison system at some point.14

It is not for this introduction to recapitulate the ongoing debate between sociologists, historians, and political scientists over the causes or origins of mass incarceration.15 That multidisciplinary debate points to several factors, from growing socio-economic inequality and the effects of neoliberal economic policy,16 to the unanticipated side effects of efforts to expand

11 See (Garland 2001) for an early definition, along with the other contributions to Punishment and Society, Volume 3 Issue 1, January 2001.

12 For this time frame, see (Western 2006) p. 2, for these custodial numbers see (Lerman and Weaver 2010) and (Lerman and Weaver 2014).

13 According to the most recent Bureau of Justice Statistics report, “Black males ages 18 to 19 were 11.8 times more likely to be imprisoned than white males of the same age.” (Carson 2018).

14 First reported in (Western 2006)

15 For an overview of problems and approaches, see (National Research Council 2014).

16 See (Western 2006); (Wacquant 2009), and to some extent, (Gottschalk 2006).

10 civil rights and protect civil liberties for racial minorities,17 to the racial politics of the 20th century – whether in terms of Black activism or the ravages of post-Jim Crow “wars” on drugs and crime18 – to the very structure of American democracy itself, from patterns of participation, to prosecutorial and judicial behavior in the face of electoral incentives.19 In any event, the

American incarceration rate more than quintupled from 161 per 100,000 to 767 per 100,000 between 1972 and 2007.20

Aside from situating mass incarceration within broader socio-political trends, academic analysis of the institution of imprisonment itself has addressed topics including the contrast with capital punishment,21 the contrast with slave labor,22 the role of prisons in a deindustrialized post-welfare state economy,23 and the shift in implicit and explicit public reasons for the use of incarceration.24 This last aspect, the rapid abandonment of the rehabilitative policies that had governed American punishment in one way or another since the Revolution in favor of a more nebulous policy of incapacitation, or “warehousing” criminals – should be of particular interest to moral and political theory.

17 See (Murakawa 2014) and (Hinton 2016) as well as (Gottschalk 2006).

18 For Black politics, see (Fortner 2015) and (Forman 2017) as well as the very influential (if largely unsubstantiated) case in (Alexander 2011).

19 See (Barker 2009) and (Lerman and Weaver 2014).

20 (National Research Council 2014)

21 (Gottschalk 2006).

22 (Alexander 2011).

23 Touched on by, inter alia, (Garland 2002), (Western 2006), (Wacquant 2009), and reviewed by (Thorpe 2016).

24 The shift in the ideology of American punishment that corresponded to the era of mass incarceration was tectonic and remains understudied. The first to note this trend was (F. A. Allen 1981). Convincing accounts are in (Garland 2002), especially Ch. 3., and (Lerman 2014), especially Chs. 1 and 2.

11 But while one might have expected social and political philosophy to contribute wholeheartedly to a research program examining the philosophical justifications for punishment and the prison as a political institution, the disciplines of philosophy and political theory have remained aloof from the changes in state punishment in the United States.25 The role of political and social theory in the social-scientific debate, has been largely limited to the abiding influence of the birth of the prison literature, especially insofar as it presented itself as a “history of the present,” and to which sociologists and political scientists continue to look for guidance about the conceptual origins of contemporary incarceration.26 To fully review the separate strains of the debate over the birth of the prison would be otiose, given the excellent comparative studies that already exist.27 Given, however, that the aim of this study is to shift the meaning and the historical frame of penal modernity, it seems worthwhile to review some of the work that sought to explain incarceration as a distinctly modern phenomenon.

There were other histories of prison before the appearance of Surveiller et Punir, but they often took a whiggish, not to say triumphalist, approach.28 Foucault’s enormously influential study was the first to point out the prison as the disciplinary double of Enlightenment freedoms.

25 Even a recent collection of essays about philosophical retributivism and its critics, (Retributivism: Essays on Theory and Policy 2011) makes little mention of retributivist trends in criminal punishment, shifting sentencing guidelines, of the other penal contributions to mass incarceration. There are, of course, exceptions to this. The problem was noted by (Lacey 1999) and, addressed more narrowly in (Greiff 2002). Recently both (Harcourt 2014) and (Ramsay 2016) have made contributions towards rectifying this lacuna. In philosophy, (Shelby 2016) has opened a space for talking about the carceral state in terms of non-ideal theory, as have recent conferences at Harvard and Brown.

26 Studies of mass incarceration often reference, at the very least, Foucault’s Discipline and Punish (from which the phrase “a history of the present” is taken). (Gottschalk 2006), for instance, uses the birth of the prison literature to note both the “long history” of penal policy and as a resource for understanding the decline of the rehabilitative ideal and the actual motivations and consequences of early prison planning.

27 See (Ignatieff 1981) and (Garland 1990).

28 See, for instance, (Sellin 1944). The early exception is (Rusche and Kirchheimer 1968), for which, notably, Sellin wrote the introduction.

12 Historians may quibble with the accuracy of Foucault’s account, and political theorists continue to debate the importance of the “capillary” action of “disciplinary power” that Foucault discerned in the transition from the exercise of sovereign authority on the bodies of criminals to the practice of “normalizing” the behavior of “delinquents” under the nascent liberal order. But where the current inquiry is concerned, two aspects of Foucault’s prison writings remain unquestionably important.

The first is an element that runs through many studies of the prison but is framed in an especially memorable way by Foucault’s contrast of the ancien regime and its violent execution of Damiens with the placid regimen of the prison colony at Mettray. Foucault, like his Marxian predecessors Rusche and Kirscheimer, is keen to situate the changes in the mode of punishment against the background of an emerging industrial modernity. The Marxists had a straightforward materialist explanation for this that tracked evolving forms of production. Foucault, for his part, was interested in the excavation of more subterranean tendencies in the distribution of power throughout the liberal order, but both accounts view the penitentiary prison as a fundamentally modern, and more particularly late-modern innovation.29

Another thesis of Foucault’s with crucial implications for this study is the complicated relationship between the corporality of pre-modern punishment and the “production” or

“constitution” of the soul in later disciplinary institutions. The prison, according to Foucault, makes itself interested in addressing the soul of the convict in order to ensure the availability of

“docile bodies” for industrial society.30 The present study deals, in its own way, with a

29 (Foucault 1977). See also “Questions on Method” and “Interview with Michel Foucault” in (Foucault 2000).

30 In preparatory work on “The Punitive Society,” Foucault also probed the role of certain Protestant confessional practices in the development of these late-modern forms of soul-craft, but, in the event, he scrubbed this secularizing strain entirely out from the account published in Discipline and Punish. See (Foucault 2015).

13 Foucaultian slippage between bodies and the images of the souls that are thought to control them.

Of particular interest are the various, related images of rationality that philosophers of incarceration use to explain how confinement can lead to correction. Many of the following chapters will engage with the language of the soul and soul-crafting. Even where they disagree with Foucault’s conclusions, these discussions remain in dialogue with his categories and terms.

Written and published at almost the same moment as Foucault’s masterwork, Michael

Ignatieff’s Just Measure of Pain makes a more painstaking case for the early industrial/late

Enlightenment background for the birth of the prison.31 The book brings together the political and social context for incipient incarceration, from colonial collapse, to changes in labor practices, to developments in urban hygiene, to provide a fuller picture of the contingent social and historical factors that contributed to the rise of the English penitentiary prison and its reformatory character. Ignatieff is especially attuned to the conflict between the materialistic foundations of the philosophy of human improvement (with their origins in Helvetius and

Priestley) and the religious sources of the belief in repentance, reform, and forgiveness that inspired many of the new prison reformers (including Howard and the Quaker reformer

Elizabeth Fry).32 Contrary to both Foucault and Ignatieff, it will turn out that this problem of rational methods and religious motivations predates industrial modernity considerably – but

Ignatieff’s observation of the friction between materialism and the religious resources on which incarceration often draws (and, perhaps, depends) are nevertheless an implicit concern throughout, and especially in the third chapter below.

31 (Ignatieff 1978).

32 The secular and the materialist strains in the reform movement were both adulterated when it came to the actual practice of imprisonment. See (R. A. Cooper 1981).

14 Equally relevant to the admixture of Enlightenment and religion at the origin-point of the prison is the work of David J. Rothman on the development of the American penitentiary system.

His two studies of the Jacksonian asylum and the Progressive-era reformatory detail the effects of two distinct moments in American political ideology – Jacksonian popular democracy and the nascent technocratic scientism of the Progressives – on penal institutions.33 For Rothman (as for

Ignatieff), the shape of the penal institution must be understood in light of the contingent political conditions under which they are built. More than a few more specialized studies have confirmed Rothman’s observations about the particular relation of prisons to the establishment of early democratic political institutions in Philadelphia, Massachusetts, and the young Republic more generally.34

While the period and location discussed in these studies of the American prison does not overlap with any of the thinkers discussed in this dissertation, the link between democratic government and the prison as a particular form weighs heavily on both the first chapter

(Democratic Athens) and the last (Bentham’s prison writings) in different ways. As we will see, democratic ideology has been used to justify punishment in sometimes contradictory directions, and for all that, certain themes appear and reappear across contexts. Present in Rothman and other studies of the American prison, and equally present in the work of Jeremy Bentham examined below (and latent, perhaps, in the chapter on More), is the often uneasy coexistence of coercion and freedom as ingredients in the ideological construction of the prison.

Despite their differences, these studies all belong to the school of “penal revisionism” – a designation for a loose collection of theories that read the claims of criminologists and prison

33 (Rothman 1990) [1971] and (Rothman 1980).

34 See, inter alia, (Hirsch 1992), (Meranze 1996) and (Whitman 2005).

15 reformers, and perhaps of the enlightenment in general, under a hermeneutic of suspicion.35 Of the major “revisionist” studies, however, there is only one that treats the existence of the prison before the 18th century with any degree of seriousness. Peter Spierenberg, influenced by Norbert

Elias’ theory of the “civilizing process,” discusses the workhouses of early-modern Europe as related to the prisons of the 18th and 19th centuries through a process of gradual change rather than one of modern/late-modern caesura. The fourth chapter of this dissertation takes up

Spierenberg’s observation that Thomas More wrote about penal labor at the dawn of the era of the Work House and the Rasphuis and connects it to an even broader narrative of gradual change.36

We are now in a position to see how the broadened historical scope of the present study is a more or less radical break from previous histories of penal incarceration.37 The following chapters will go some way towards showing not only that the history of thinking about the prison as a political institution is much longer than has usually been supposed, but also that the existence of this longer story requires us to reexamine some unquestioned assumptions about the modern practice of imprisonment. In the remainder of this introduction we will give a brief summary of the five chapters that make up the skeleton of this new account of the prison and its conceptual development, before gesturing towards some consequences for the more general understanding of the “birth of the prison” and, it is hoped, for the contemporary study of incarceration.

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35 So (Ignatieff 1981).

36 (Spierenburg 1984), summarized in (Spierenburg 1996).

37 We are only mentioning here the literature on the 18th and 19th century origins of the prison as a political institution – not the extensive literature on the late 20th century prison.

16

The dissertation begins by considering the evidence for the regular use of penal incarceration before the modern era. After canvassing the work of classical historians on the use of imprisonment in ancient Athens, the first chapter focuses on the meaning of punishment in general, and incarceration in particular, within the elite discourse of democratic politics. For these elites, the prison was interpreted against the background of a broader revolution in punishment that the Athenians themselves traced back to Solon, but that emerged more explicitly in the wake of the political upheavals of the late 5th century.

The bulk of the chapter is taken up by a reading of Demosthenes’ speech Against

Timocrates, one of the most sustained discussions of the social meaning of imprisonment before the Christian era. Demosthenes examines incarceration from different angles, suggesting that it holds the potential for an egalitarian “leveling down” of punishment (prisons can hold oligarchs who might otherwise be able to afford to pay fines that poorer citizens couldn’t). But

Demosthenes also acknowledges the awkwardness of locking up free citizen bodies, a practice uncomfortably close to the chaining of slaves. The end of the chapter traces the roots of

Demosthenes’ reasoning around punishment to the “sophistic enlightenment” of the 5th century, and connects Demosthenes’ desire for an effective future-directed mode of punishment to the

Protagorean theory of punishment as education. This discussion does not entirely clarify the relationship between the aim of instruction and the form of the prison, but it provides the background for the thinker who did clarify that relationship, Plato.

The next two chapters treat the role of the prison as an image, a technique, and an institution in the work of Plato. If the Athenian prison’s position was open to contestation from the speakers’ platforms of the Athenian courts, Plato’s idea of the prison was constructed much

17 more systematically. The second chapter of the dissertation treats the philosophical architectonic of incarceration in Plato, from the description of a tri-partite prison system in the Laws, to the foundations of a reformative philosophy of punishment in the Gorgias, to the use of prison- imagery in that dialogue and others, and finally on to the moral psychology of different penal techniques, including imprisonment.

Plato’s theory of incarceration is famously based on rehabilitation. The prison turns out to be the ne plus ultra of rehabilitative techniques, especially for a particular type of elite intellectual criminal. Plato describes a version of imprisonment dedicated to soul-craft, individualized treatment, and the rational understanding of psychic states. This integration of theory (the aim of punishment) and practice (the structure of the prison), has rarely been matched in the history of philosophy.

The third chapter moves from the details of Plato’s prison to its broader significance within his political thought, and, particularly, within the context of the Laws. The prison, while the paradigmatic form of rehabilitative punishment, is absent from Plato’s paradigmatic philosophical work, the Republic, and is only fully applied to one type of criminal in the Laws – atheists. The chapter makes the case for the Laws as an attempt to formulate a distinct type of political philosophy, more explicitly situated in history and Greek society than his other works of political theory. One of the problems that Plato addresses under the aspect of the non-ideal is how social change might pose a problem for political theory, given that the resources upon which political theory draws (in Plato’s instance, shame), are socially contingent and therefore potentially unavailable to the legislator or (non-ideal) theorist.

The reasons for the fragility of these resources occupies the center of the chapter, a reading of Euripides’ tragedy Hippolytus. Euripides was conscious of the same contingency of

18 moral resources (especially shame), and equally aware of the possible constraints on moral practices, including punishment. Like Phaedra in the Hippolytus, Plato too hoped “to teach self- restraint,” as well as to produce, through the use of penal institutions, the very sense of self- control that was in danger of disappearing from society. The chapter ends by proposing that the prison, and indeed the Laws as a whole, is an experiment in institutional political theory. Rather than turning to the ideal distribution or the true concept, as in the Republic, and rather than making politics an optimized admixture of imperfect parts, as is suggested by the metaphor of weaving in the Statesman, the Laws proposes a politics that centered around institutions of correction. The prison, civil religion, the structure of the legal code itself, each of these is intended to affect the reasoning faculties of the citizens in certain predictable, pro-social ways. If the second chapter showed how Plato’s prison neatly joined his moral and psychological theories, the third chapter just as closely connects the psychological, the institutional, and the social-theoretical.

The ancient texts examined in the first half of the dissertation would, on their own, be a useful comparative case study in the logic of incarceration. But the early instance of a theory of incarceration and the latter era of prison building are also connected by several historical- philosophical threads. Plato’s account of soul-craft and reform, and even his institutional solutions, were to have a long and complicated afterlife. Part of that afterlife, the transmutation of Platonic ideas into medieval Christian (and especially monastic practice) is beyond the immediate scope of this project, but Plato’s penal strategy is more directly present in the work of

Thomas More – chancellor, martyr, and one of the most perspicacious readers of the Laws.

More’s Utopia is an important waypoint in the history of incarceration, and not only because of its role in the transmission and survival of the classical model of incarceration. With

19 More, the ancient problem of inculcating a virtuous citizenry is combined with an early-modern preoccupation with the destitute (and idle) free population. Control of crime is, for the first time, definitively yoked to the problem of poverty. The fourth chapter of this dissertation examines

More’s hybrid picture of imprisonment, one which includes many Platonic features (including the general picture of law and punishment as contiguous with education) but places human labor at the heart of penal practice.

More’s Utopia, with its explicit debt to Plato (and especially to the Laws) is the beginning of a long series of experimental plans, projects, and flights of fancy about the political organization of modern societies. Most of these did not have any lasting impact on the concept of the prison, but they did contribute to an increasingly common obsession among intellectuals for institutional design and the possibility of a closed society with a closed system of laws.

Paradoxically, these utopian tendencies would reach a sort of zenith in a thinker often numbered among the founders of liberalism, Jeremy Bentham.

In the fifth and last chapter of the dissertation, the pre-modern, unexplored philosophical history of the prison reaches its confluence with one most famous modern theories of incarceration, Bentham’s panopticon writings. As a political theorist, Bentham understood himself to be in conversation with More (as well as with Bacon, and other utopian writers), but also proposed many of the principles that would make their way into the modern consensus about incarceration. This chapter examines Bentham’s work synoptically, following the place of incarceration in his philosophy of punishment as well as the details of the panopticon prison and workhouse, the plans for which take up hundreds of pages of published and unpublished text.

The chapter finds a fundamental contradiction in Bentham between the liberal (or democratic) principle of lesser intervention and the subtle, but persistent tendency in Bentham’s

20 thought towards a comprehensive spectrum of education and punishment not unlike what was uncovered in More and Plato. The treatment of the Panopticon in light of those earlier prison plans brings certain aspects of Bentham’s proposals into sharper relief. Bentham’s utilitarian philosophy of punishment, is entirely future directed (and similar, in some respects, to the

Athenian connection between punishment and the public good). Smuggled into the familiar utilitarian reasoning about deterrence, however, is the presence of a reformatory project relating to the indirect power of law (and the very direct power of punishment) to affect and reshape the way citizens reason about means and ends. The panopticon as total institution is shown to incorporate the same unity between education, punishment, and “right” reason that characterized the Platonic discussion of incarceration. This juxtaposition of old and new heightens the distinction between the classical techniques of correction that relied on a set of social emotions, particularly shame, and Bentham’s theory of correction, which is entirely taken up with labor and self-discipline. This understanding of labor as the way in which to regulate the rational conduct of atomized individuals forces a reappraisal of Bentham’s social thought, concluding with a discussion of his tendency to aggregate persons in terms of class.

With Bentham, the relevance of this alternative conceptual history of incarceration for understanding the “birth of the prison” also begins to come into focus. Bentham’s use of labor, for instance, is obviously indebted to the industrial revolution (the first design for a Panopticon intended to serve as a factory in Russia), but it also fits into a much longer story about the transition from one set of social controls used by philosophers of punishment (for instance shame, still an important tool in More’s time) to an entirely different social paradigm based on class and employment (and suggests, even if only obliquely, that another such paradigm, “after labor” is equally plausible). This gives labor a philosophical role where it had previously

21 occupied only an historical one, but also suggests that labor is occupying the position that earlier theories of incarceration had filled other ways.

One of the major effects of viewing the history of incarceration in this longer perspective is the encouragement it provides to revisit the theoretical aspects of the modern prison, such as

(discredited) claims to reform and shifts from religious sources of therapeutic authority to secular ones. Even the historically contingent aspects of the 18th century prison – its debts to industrialization, the pressures of liberal-democratic political ideologies – have their parallels, if not their origins, in earlier moments of penal-philosophical thought.

One result of challenging the exclusivity of penal modernism is that it paradoxically heightens the gap between the period often identified as the origin-point of the contemporary prison and our own carceral moment. If Plato and Bentham were in general agreement about the coercive power of the law, and the intimate relation between punishment, law, education, and practical reason, none of those assumptions seem relevant to the American prison in the era of the Supermax (or the British custodial system in the era of the ASBO).

This is emphatically not to say we need to (or can) return to the prison reform movement as a political project (but this time, really enlightened). Having survived the discovery that

“nothing works,” neither Plato’s techniques nor our own, we can begin to view earlier prison movements as resources, identifying the moments of humanism, of genuine social concern, and of problems and solutions orthogonal to, but not necessarily irrelevant for our own. And most importantly, we can see more clearly just how exceptional the current practices of incarceration are, not only in “modernity,” narrowly construed, but in the entire history of democratic punishment, a history which is very long indeed.

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22 Let us return to the Carceri one final time. In the sixteenth and final print of the second edition of the prison drawings, Piranesi’s classicizing revisions reach their fullest expression.

Doric and Corinthian columns sprout out of the dungeon floor. A Roman-style funeral stele crowds the apex of the central focal point, drawing the eye to two imposing busts (of magistrates? of criminals?), and two inscriptions. The upper one, just above the grave monument, reads “ad terrorem increscent(tis) audaciae.” It is Livy’s description of the reasoning behind the construction of the original Carcer, the first prison in Rome, built “to strike fear into the growing shamelessness of men” (I.33). This attitude has deep roots in the history of the prison. Shamelessness (audacia) is the Roman equivalent of the Greek thrasos, which, we will see, is precisely the emotion which, according to Plato, most contributes to civic decline (and thus most necessitates a reformatory prison).38

The classical agreement around the idealized mission of state punishment seems a far cry from today’s carceral state.39 How did the fear of shamelessness become a disdain for the poor, and how did the correction of godlessness (Piranesi’s funeral stele speaks of impietati) become the predatory incapacitation of entire demographic categories? Some of the answers to these questions belong to the domains of political economy or political sociology, but some might be found in political theory. Before the prison became a complex, before incarceration captured the state itself, imprisonment was an idea, a set of principles for the design of political institutions. It was a commitment to the future, of the polity and of the person punished, it was a confidence in the connection between knowledge of the principles of human behavior and knowledge of the

38 Laws 701b, in hendiadys with anaideia, literally a lack of aidos – shame or reverence. See below, Chapter Three. For audacia as the correct translation of Plato’s thrasos, see Cicero, Off. I.63.

39 The “carceral state” is a term for the outsized influence on state institutions, public policy, and democratic politics by the path-dependent effects of mass incarceration. For a multi-sided discussion of what the carceral state is and what its causes are see (Lerman et al. 2015)

23 laws that ought to govern society, and it emerged from a willingness to accept political institutions as always in subject to the changeability of the social world. These principles, we will show, have a theoretical history – one with a unexpected beginning, and an equally surprising end.

24 Chapter One: Incarceration in Democratic Athens Revisited

This dissertation seeks to reorient the political and social theory of the prison away from standard approaches that focus on the 18th century and towards a different set of intellectual developments that can be traced back to Greek antiquity. Much of the road to be travelled is through abstract philosophical thought and carceral plans that never came to fruition (or were never intended to). This is somewhat discomfiting in the case of an institution, like the prison, that is so deeply implicated in the real pain of real bodies, from the shackles in Newgate to the tortuous claustrophobia of modern isolation units. For this reason, among others, it seems right to begin our reconsideration of the origins of incarceration with an account of a prison that existed in stone and wood, and set the course, in its way, for the direction that incarceration would take in the philosophical imaginary.

This chapter will explore the meaning of imprisonment, and punishment more generally, in 4th century democratic Athens. There are a number of reasons to choose the Athenian prison as the correct starting point for a study of the theory of incarceration. First, as we will see, there is good reason to suspect that the Athenians were the first polity to imagine imprisonment as a regular form of punishment. Second, even if the prison in Athens was, as some have argued, just another form of holding cell of the sort common to many pre-modern European societies,40 like all political institutions, it was taken up and transformed by the political ideology of Athenian democracy. The discussion of the prison sheds light on a uniquely democratic way of thinking about crime and punishment and gives access to an important set of arguments for future- directed punishment. This connection between democratic ideology and the reasons for

40 Thus (Hunter 1997).

25 punishing point to the last reason for treating Athens first. The Athenian prison and the arguments around how and why it should be used are the background against which Plato took on the question of incarceration. It is Plato’s use and reuse of incarceration as an image and an institution which haunts the history of the prison down to the present.

The chapter begins with a review of the current state of the evidence around the role of imprisonment in Athenian law. It continues with a close reading of a speech by Demosthenes which gives insight into what was significant about the prison in the context of democratic politics. The final section connects the political discourse of democratic elites to the theoretical discussion of future-directed punishment that Plato took up in the Protagoras.

I. The historical context for the Athenian prison

A casual inquiry into Athenian criminal law will find little reason to dissent from the common view that incarceration simply did not exist as a criminal punishment in the ancient

Mediterranean world.41 While there had always been a need to detain prisoners of war,42 and every ancient culture was known to have a mode of detaining those awaiting trial, execution, or under remand for some other reason,43 it is harder to find evidence of criminals sitting in prison as a punishment.44 By the late fifth century, the jail (desmotērion) at Athens was large enough to

41 For a general account of the paucity of penal incarceration in the ancient world, see (Peters 1997)

42 Thucydides: 4.38-41, Xenophon: Hellenica 7.4.36-38. These detentions were often done in civic buildings (δημοσία) or even quarries (Thuc. 7.86-7).

43 Cf. Herodotus 3.23, where it is treated as unremarkable that the Ethiopians have a prison (though certainly remarkable that its chains are of gold).

44 The standard reference work of nineteenth century scholarship calls incarceration “not ordinarily a punishment” (Real-Encyclopädie d. klassischen Altertumswissenschaft, s.v. Δεσμοτήριον), and its 21st century edition says prison was “not imposed as a punishment” (Der neue Pauly, s.v. Desmoterion) in the Greek world. For more extensive discussion of the literature, see (D. Allen 1997), p. 121 and (Hunter 1997) p. 296.

26 hold at least forty inmates at once, but the evidence for the use of the prison as a regular penalty is less than certain.45

One possible origin for legal imprisonment is in the developing relation between debtors and creditors in Athenian society. The lawgiver Solon famously abolished the practice of selling

Athenian citizens into slavery,46 though various forms of debt bondage may have persisted into the 4th century.47 In the 5th and 4th centuries a debtor could be imprisoned until repayment of the debt,48 and, later, merchants could be imprisoned over defaults on loans. Whatever the historical connection, a resemblance between imprisonment and enslavement was clear to many Athenians

(as the reading of Demosthenes below will show). The transition between the use of imprisonment in private suits as a substitution for slavery or bondage and the use of incarceration as a standard penalty is murkier. There is reason to believe that by the end of the Peloponnesian

War those in debt to the state could be imprisoned,49 but many of the remaining examples from the fifth century consist in extraordinary or political uses of the prison: A man offers himself up

45 The forty men in question were accused of profaning the Eleusinian Mysteries and plotting oligarchic revolution. See Thuc. 6.60 and Andoc. 1.43-48. See (Todd 1993), p. 140, where the evidence is described as “tendentious” and “odd”.

46 [Aristotle] Ath. Pol. 2.2 and Plutarch, Solon 13.4 inter alia.

47 For the history and distinction between debt enslavement and debt bondage, see (Edward M. Harris 2002) (which seems to overlook the role of imprisonment).

48 This is well attested, as (D. Allen 1997) and (Hunter 1997) show. Cf. Andocides 5.63.

49 Andoc. 1.92.

27 for imprisonment instead of paying a fine;50 a speaker calls prison more powerful than ostracism.51

The increased tendency of the state to imprison, whatever the cause, appears to have come in to its own during the most catastrophic break in the democratic regime – the reign of the

Thirty Tyrants. The Thirty used the prison as a place to conduct political confinement and executions out of the public eye.52 As Danielle Allen observes, the creation of a form of punishment that does not entirely rely upon communal sanction is a noteworthy moment in the expansion of state power.53 As opposed to the many forms of Athenian social control that were about the viewing of bodies and the reaffirmation of social knowledge, the prison is an

“undisplayed” form of corporal punishment, taking place between the state and the criminal, without the mediation of the communal gaze.54 As contemporary work on the state capacity to punish suggests, once the state apparatus acquires a certain punitive capability, it is more likely that its use will persist, and even expand, than that it will disappear, even if the political rationales governing that use eventually change.55 This seems to be the case with the Athenian

50 Andoc. 2.15, [Lysias] 6.21. Cf. (D. Allen 1997) pp. 123-124 and following for more evidence of the slow evolution of imprisonment.

51 [Andoc.] 4.4-5. The uncertain author and date of this speech make it unreliable for determining the precise evolution of the penal practice, but it is suggestive that the prison comes in to common use concurrently with the cessation of ostracism.

52 Lysias 12.16, 13.44. Control of the prison was an oligarchic priority according to [Aristotle] Ath. Pol. 35.1. Memory of the link between the Thirty and the Prison lingered, as will be seen below.

53 (D. Allen 1997), p. 134.

54 On communal knowledge and punishment, see (D. Allen 2000). Cf. (Hunter 1994) pp. 178ff on “displayed” (stocks) vs. “undisplayed” corporal punishment. (Hunter 1997) tries to suggest that the act of public arrest (being “dragged off to jail”, as the texts often have it) serves the purpose of public humiliation (p. 318), but in any case, the prison is certainly qualitatively different from its predecessor, the stocks.

55 See (Gottschalk 2006).

28 prison, as the first pieces of evidence that imprisonment could in fact be used as a sentence in a non-debt related case date from the early years of the newly restored democracy, while the strongest pieces of evidence date from some decades later.

The first direct evidence of imprisonment as judicial punishment purports to be from 399

B.C. It is the account of Socrates’ trial immortalized in Plato’s Apology, where the philosopher considers imprisonment as an alternative to the death penalty requested by the prosecution.56

From this point, one could proceed to map the increasing mention of prison and incarceration as it grows in the Athenian record, both in Plato (who took a special interest in the prison) and Attic orators and dramatists.57 That is indeed the path scholars have taken in trying to prove the status of imprisonment as a normal judicial sentence from the fragmentary evidence. Based on the state of the literature, however, it does not seem that such an approach can yield conclusive results.58

The stalemate reached in recent studies of the Athenian prison have made clear that the next task is to move from asking if and how incarceration happened in Athens to asking what its meaning might have been for Athenian society.59 Allen suggests an historical shift in the role of the prison, from insignificance (early 5th century and before), to limited involvement in matters

56 Apology 37b8-c2: “Perhaps [I should propose] prison? And why should it be necessary for me to live in jail, always enslaved to the whoever’s the magistrate in office? Or should I take a fine, and be imprisoned until I pay in full? But that's the same to me, as I just, indeed, was saying. For I don't have any possessions from which to pay.” On “proposing” a sentence (timēsis) as opposed to a sentence mandated by law, see (MacDowell 1986), p. 257 and (D. Allen 1997) p. 123. The Greek text used of Demosthenes is the Loeb (ed. Vince) and the Greek text for Plato the OCT (ed. Burnet).

57 Plato describes the imprisonment of Socrates (Phaedo 59b-60a, 116e-118a), uses imprisonment as a metaphor (Cratylus 400c, Gorgias 525b), and much more, as I discuss in Chapter Two, below.

58 Both the general accounts of Athenian law and the specialist literature on prisons remain split. (D. Allen 1997) follows (Barkan 1936) in finding the evidence on the whole supportive of the development of imprisonment as a normal punishment. (Hunter 1997) in the tradition of (Latte 1931), is much more skeptical. The reader interested in a fuller description of the secondary literature can consult the bibliographic material in both recent studies.

59 (D. Allen 1997) and (Hunter 1997) both suggest that it is time ask the question of the social meaning of the prison.

29 of state (and debt imprisonment, including indebtedness to the state, mid 5th century) to more widespread usage (4th century).60 She also notes the egalitarian possibilities in a punishment that, unlike a fine, would be equally burdensome for rich and for poor. Plotted diachronically, the development of the prison might map on to the development of Athenian democratic power.

Concurrently, however, and using much of the same evidence, Hunter is more skeptical – both of the expansion of the prison as a “normal” sentence, and of the role of the prison in anything beyond detaining inmates and signaling the displeasure of society – containment and deterrence.61

The way forward does not appear to be through the collection of more evidence, nor will rearranging the evidence that is available break the impasse between those who see the traces of the prison and extrapolate more, and those who see the same scant traces and doubt there was much there to begin with. Rather than search for more evidence (although a few new sources have been brought to bear below), this paper will test out a different method. The investigation will take up one text and examine it thoroughly, from the inside out, with the hope of understanding how the phenomenon of incarceration might have presented itself to the author, and perhaps to his audience.62 It is not difficult to choose which text to select – there are only two sustained 4th century discussions of imprisonment to have survived. The paper will focus on one of these, Demosthenes’ speech Against Timocrates, and the evidences it gives for a direct connection between incarceration and democratic ideology.63

60(D. Allen 1997), pp. 131-135.

61 (Hunter 1997) pp. 316-19.

62 See (Todd 1990) on methodological considerations about the use (and misuse) of the oratorical corpus.

63 We will examine the other text, Book X of Plato’s Laws, at in Chapters Two and Three, below.

30

II. Demosthenes’ Against Timocrates and democratic punishment 1. A primer on punishing democratically

Against Timocrates is the second of a pair of speeches (the first is Against Androtion) dating from a very early moment in Demosthenes’ career, while he was still a logographos – a speech-writer for hire.64 The two speeches were both written for a man named Diodorus, whose identity (and connection to Demosthenes) is uncertain.65 What is certain is that the speeches are both directed at the same clique of wealthy politicians, a group which may have been connected to the rhetorician and intellectual Isocrates.66

A colorful passage from the first speech can serve as a starting point as we try to understand how to read the second speech. One of the topoi Demosthenes deploys in the Against

Androtion is that of Androtion as malicious and humiliating tax collector, prone to “dragging people off to prison” (Dem. 22.53, 56).67 It is incontestable that Androtion, as a tax collector, had the right to arrest people in arrears. Demosthenes, however, suggests that Androtion’s use of imprisonment was undemocratic. How can a legal tool be undemocratic? Well, for one thing,

Demosthenes appeals to historical memory, suggesting that this “dragging people off” is reminiscent of the Thirty Tyrants (22.52), and contrary to the “gentler way” in punishment that

64 The Timocratea has received scant scholarly attention. The best introduction remains (Wayte 1893), supplemented by the recent treatment in (MacDowell 2009). (Roisman 2006) also makes some use of the speech.

65 Rowe posits a long-running feud between Demosthenes and the Isocrateans dating from his attempts to wrest back his inheritance, (G. O. Rowe 2000) p. 278ff.(MacDowell 2009), p. 171, is skeptical of this theory.

66 Then ancient evidence for this link comes from a scholium to the Against Androtion, (Dilts 1986), II sch. 318 and Zosimus, Life of Isocrates 256.91 (Westerman). For confirmation of the “Isocratean” nature of this clique, see (G. O. Rowe 2000), pp. 282ff and (G. O. Rowe 2002). For doubts, see (Harding 1994), pp. 17–19.

67 Demosthenes uses the passive for people being dragged off: es to desmotērion helkesthai.

31 characterizes democratic life.68 It is not only the physical act of dragging, but the invasion of personal space that conjures up tyranny. Androtion, while acting as a public servant (en dēmokratiai politeuomenos), turned the houses of private citizens into prisons.69 By this,

Demosthenes does not mean that Androtion put people under house arrest; he means that the physical violation of invading a man’s home is equivalent to the physical violation of touching his body (by chaining him up), and is therefore an act of violence against the citizen. “For if”

Demosthenes argues, “you want to examine in what way a slave is different than a free person, it is that for slaves, on the one hand, the body is made responsible for quite all crimes committed, for free persons, on the other, even having suffered the greatest misfortune, they are preserved from [bodily harm].”70

Demosthenes’ appeal to historical memory is a good example of the need to understand incarceration against the background of particularly democratic features of Athenian life.

Imprisonment, or at least Androtion’s use of it, violates Athenian norms about the body of the citizen, and, what’s more, seems to be an “uncivilized”, that is, undemocratic, way to treat free

Athenians.71 Building to a climax, Demosthenes says that even a city of slaves wouldn’t tolerate

Androtion’s outrageous behavior (hubris), let alone a proud democracy. Demosthenes baits the jury, describing Androtion going about and dragging people off in public, calling free people slaves and gleefully asking “if the prison had been built for no purpose” since “the criminals”

(from Androtion’s oligarchic perspective this means “the people”) aren’t in it (22.68). This

68 “Everything in a democracy is gentler [praotera]” (22.52, see below).

69 22.52: …tēn idian oikian hekastōi desmotērion kathistē.

70 22.55, an identical argument to 24.167, but deployed to opposite ends, as will be seen below.

71 On the democratic virtues of gentleness and generosity, see (Romilly 1979), (Christ 2013), and below.

32 rhetorical question gives an insight into the role Demosthenes is implying that Androtion saw for incarceration. The prison, in the tradition of the Thirty, is Androtion’s oligarchic tool for enslaving the city and brazenly assaulting citizens’ bodies. Here, Demosthenes emphatically responds with a rhetorical statement of his own – perhaps the prison does have no purpose, having failed to hold Androtion’s father, a rich debtor.72 In the Against Androtion, Demosthenes uses the historically anti-democratic origins of imprisonment to tar an opponent, but he also implicitly proposes a possible democratic theory of the prison as a form of egalitarian punishment – as the perfect tool for locking up shifty oligarchs.

This brief look at the Andotionea provides some idea of the scope of “democratic” punishment. Democracy privileges the affirmation of equality through a painstaking awareness of the citizen body. This finds an expression in the forms of punishment deemed generally appropriate. Democracy is also defined by the rule of the demos over and against various elites.

Thus it makes sense that punishment is an important threat against the rich, whose status and power threaten the presumption of equality. The idea of “democratic punishment” as a political practice distinct from and indeed opposed to oligarchic punishment gains additional plausibility in light of Matthew Simonton’s recent work on oligarchy in the classical Greek world. Oligarchs also punished for distinct reasons – but the watch-words of minority rule were stability (between the rulers and the ruled) and consensus (within the ruling class).

Oligarchies worry about crimes that will cause resentment amongst the people (the non- oligarchic demos), and they fear behavior that threatens agreement amongst their own clique.73

72 22.55. Androtion’s father was a wealthy man who makes a cameo in Plato’s Protagoras (315c) and Gorgias (487c, as an associate of Callicles). Amusingly, he seems to have escaped while being allowed to dance in the annual procession of the Dionysia on a sort of furlough (see Schol. ad. 22.68).

73 For the former case, see the pseudo-Aristotelian Rhetoric to Alexander, 1423b3-4, where such behavior deserves the “greatest penalties [megistai zēmiai]”. For similar language about the latter case (where disagreement among

33 This means that oligarchic punishment takes two forms. When directed against the aristocratic class, punishment is exemplary and public, but respectful – exile is the prime example of such punishments, it preserves bodily integrity, avoids cause for retaliation, holds out the possibility of reintegration and removes the threat to political order. When oligarchs were worried about the restive populous, they either punished in secret (like the Thirty in the Athenian jail) or staged a public spectacular, pour encourager les autres.74

To speak proleptically about a theme that will become clearer in Demosthenes’ Against

Timocrates, democratic punishment exists along the same axes as oligarchic punishment.

Democracy is interested in maintaining citizen equality (horizontal) and maintaining the hierarchies of demos over elites and citizens over non-citizens, respectively (vertical). The prison’s oligarchic overtones thus make it a problem for a democratic politician. There are two possible solutions – challenge the legitimacy of the prison, or assimilate incarceration to the available democratic ideologies. Both strategies were tried out in democratic Athens. We know this because both strategies are preserved in Against Timocrates.

2. Democratic strategies for contesting incarceration

Demosthenes’ client Diodorus probably lost his case,75 but he was happy enough with

Demosthenes to hire him again shortly thereafter, for another case involving Androtion’s clique.76 In this case, the legal context is more relevant. Androtion and three companions were

oligarchic ephors is said to deserve the “greatest punishment [megistē timōria]”) see Xenophon, Hellenica 2.3.34. Both cases are discussed in (Simonton 2017), p. 120 and p. 84 respectively.

74 For oligarchic exile, see (Simonton 2017) p. 99ff; for spectacular punishments, ibid. p. 108.

75 (Demosthenes 2008), p. 170 – after all, Androtion was appointed to an embassy the next year.

76 Demosthenes’ speech made a big enough impression to attract the attention of Isocrates, who seems to have responded to it (G. O. Rowe 2002).

34 sailing on a mission to Mausolus (he of the Mausoleum) when they captured a ship and brought it to Athens as plunder. Diodorus sued them for having kept the money for themselves rather than paying it over to the treasury of the state and of the goddess Athena. This suit marked the three as public debtors, liable to imprisonment. After suit and countersuit, a confederate named

Timocrates moved a law that would allow some debtors to remain free from prison after their conviction but before they repaid the debt, if they provided sufficient collateral for bond.77 It is the legality of this law that Demosthenes’ speech contests – placing imprisonment squarely at the center of the argument.

The speech is long and ungainly. It seems likely that our copy is a draft of a text that was not delivered – perhaps because Androtion and the others paid back what they owed – and therefore contains several independent lines of argument of varying coherence. One, of great interest for political theory, concerns the nature of law and lawmaking in a democracy, and the importance of good laws, even for a state where the vote of the people is the final decider.78

Others concern, as might be expected, the details of the case and the character of the defendants.

The strand of argument most relevant to the present inquiry, however, is the running engagement with whether and why Androtion and his fellows should have to submit to imprisonment.

Demosthenes may have expected the defense to try to turn the trial, at least in part, into a referendum on incarceration.79 At various points, Demosethenes sketches out, based on

77 For the background to the case, see (Wayte 1893) p. xxxvii and (MacDowell 2009), p. 181ff. For Timocrates as an Isocratean fellow traveler, see (G. O. Rowe 2000), and contra, (Roisman 2006).

78 E.g. 24.75-6, 152-154. See (Maridakis 1951).

79 Given the absolute authority juries had to determine a verdict, the appeal to a form of “jury nullification” was a crucial strategy in the Athenian courts. See (D. Allen 2000).

35 Timocrates’ past statements or a presentiment of the opposition’s tactics,80 an assault on imprisonment along three fronts: 1) Imprisonment itself is illegal; 2) even if it is technically legal to imprison someone, it may not be fitting (kalos) to do so; and 3) the technique of imprisonment is specifically unsuitable for the habits of a law-abiding democracy (it is not gentle or philanthropic). Demosthenes may be especially worried about these arguments given that he used some version of 2) and 3) himself in his earlier case against Androtion. The very fact that such a debate could play out in court over two cases itself suggests the social significance of imprisonment at the time, and a close examination of these three arguments will yield a more concrete understanding of the positions at stake.

A. The legality of imprisonment

The argument that it is illegal to imprison citizens for crimes such as the one Androtion committed is a potentially decisive one. Demosthenes thinks Timocrates might cite at least two pieces of evidence to convince the jury that imprisonment is eo ipso illegal. One is the law permitting people to remain free before their trial with the provision of sufficient sureties

(24.144-5). The second is the oath which members of the boulē swore not to imprison citizens.

These pieces of evidence could suggest that it is not ever possible (that is to say, legal) to imprison. Demosthenes must show that it is both possible and fitting.81

The law here seems to be squarely on Demosthenes’ side (even Timocrates’ own legislation, in seeking to allow some people to avoid prison, implicitly admits that others will

80 At points he says Timocrates has already made such arguments (e.g. 24.77 – “presenting himself as one who…will free the prisoner”), at points, that this is the sort of argument the jury should expect to hear (e.g. the rhetorical questions “perhaps it would be shameful…” at 24.125), and once that he “hears [Timocrates] is going to cite” the law on pre-trial bail as precedent (24.144).

81 24.147: “Now let these things be sufficient evidence for you that it is possible to imprison.” Note that here Demosthenes seems to consider imprisonment a regular penalty (timēma).

36 stay there). What then, might Timocrates have gained from making such an argument? As the disagreement among modern scholars of Athenian law may reflect, there seems to have been considerable confusion over who was allowed to imprison and who potentially subject to imprisonment. Similarly, Demosthenes himself cannot point to imprisonments occurring regularly until after the restoration of the democracy, about fifty years before Timocrates’ trial

(24.133).82 If the use of penal imprisonment was recent phenomenon, Timocrates might have wagered that by turning the case into a referendum on a relatively new and possibly unpopular form of punishment, he could draw attention away from the details of his own case.83

In short, even if the law was against Timocrates, it seems that incarceration was new enough and controversial enough that Timocrates thought he could cast doubt on its legitimacy, even with shoddy proof. To counter this, Demosthenes makes an attempt, common enough among 4th century orators, to link his argument for imprisonment to the legendary 6th century

Solonic code. Given Demosthenes’ own failure to cite any concrete examples of imprisonment before 403 B.C., this might seem an unlikely move, but by exploiting the ambiguity between

“being chained up” in prison and being chained in the stocks (podokakkē), Demosthenes is able to cite well-established laws that require “imprisonment” [desmoi/to dedesthai] for thieves, malefactors, and traitors (24.103).84 The balance of the evidence surely points to “locking up” criminals as a possible legal sanction – but by calling attention to the connection between the prison and the stocks, Demosthenes has created other problems for his case.

82 And, of course, around the dramatic date of Plato’s Apology, cited above.

83 Cf. 24.190.

84 The gradual shift from debt enslavement to imprisonment mentioned above may also have given Demosthenes reason to think the connection between Solon’s emancipatory legislation and imprisonment would seem plausible to jurors.

37 B. Imprisonment, corporal punishment, and citizen bodies

In Athens, the idea of chaining up or imprisoning citizens was particularly threatening and frightful.85 If the argument that imprisonment itself is “impossible” seems rather tendentious, the case against imprisonment as unfair, shameful, and undemocratic is potentially much stronger. After all, these are some of the very same arguments that Demosthenes himself had tried to use against Androtion in the earlier case.

The most conceptually powerful appeal available to a critic of incarceration may have been that it violated the distinction between slaves and free persons. As Demosthenes noted in the Against Androtion, punishments that touch the body are given to slaves, while other ways are found to punish free people.86 This suggests that the form of punishment was one of the defining characteristics of what it meant to be free or slave.87 This is confirmed by a phrase of Plato’s, who has Socrates describe imprisonment as “being enslaved” (douleuonta) to the jailers (Apol.

37c).88 The clear demarcation of such difference was essential in a slave society where slaves were ever present in public spaces but legally excluded from public life. In fact, in reminding the jury about the crimes and misbehavior of Androtion, Demosthenes repeats nearly verbatim the description of the distinction between slaves and free persons that he’d used before.89 Now,

85 Cf. [Andoc.] 4.17-19, a late fourth century speech that plays on the visceral wrongness of imprisoning a free person, and (D. Allen 2000) p. 213-224.

86 Inscriptions have confirmed this – in some cases the punishments were even precisely correlated with each drachma of the fine corresponding to one lash for a slave. See (Debrunner Hall 1996).

87 This distinction has been acknowledged since (Latte 1931). For an analysis, see (Hunter 1994), Ch. 6.

88 It is not only that in prison a man is not his own master ((Burnet 1990), ad loc.), it is the very fact of being chained up – note the significance Plato gives to the removal of Socrates’ chains in the Phaedo (59b, 60e).

89 24.167, cf. 22.55.

38 however, this distinction is forced to sit uneasily with the fact that Demosthenes is defending the use of a corporal punishment (chained imprisonment) on the delinquent debtors.90

Demosthenes does not address this contradiction head on. Instead, he focuses on the right of the jury to assign whatever penalty it sees fit. Shrewdly, he reminds the jurymen of the extreme crimes where they would have no problem inflicting harm on the bodies of the criminals

– “thieves, temple-robbers, parricides, murderers, draft-dodgers and deserters.” By throwing the legal right or the moral imperative of a jury to give the corporal punishment of imprisonment into doubt, Timocrates would throw into doubt all corporal punishment.91 This neat little sophism shows imprisonment’s liminal position. On the one hand, there is a strong cultural reason for a juryman to feel uncomfortable with imprisonment; on the other, the juryman is reminded that he is not only within his rights to violate citizen bodies, sometimes it is the very thing the law demands. At least some of the varied arguments running through this disorganized speech are not as separate as it might have seemed at first – Demosthenes needs to stress the importance of the “rule of law” in order to convince jurors who are being made squeamish by corporal punishment that it is necessary for them to fulfill what the law requires (24.116-7).

The discomfiting nature of imprisonment not only stems from a blurring of the line between slaves and free persons; it also has to do with the structure of social identity that lay behind the inviolate body of the citizen. It is well known that the roots of the Athenian sense of justice are to be found buried in the archaic conceptual economy of honor (timē) damaged and

90 Physically, imprisonment (to dedesthai – literally “to be chained”) seems always to have involved some physical restrain. Its “corporal” nature was never in doubt. See (Hunter 1994) and (Hunter 1997).

91 “When you abolish imprisonment [ton desmon] you will abolish corporal punishment [to pathein] as well”, 24.119.

39 repaid.92 As early as Homer being “shameful” (aischros) is associated with being vulnerable to bodily assault.93 The party of Androtion and his friends, it must be remembered, was a wealthy and illustrious group – including the son of the general Laches (the character in Plato’s Laches), and each of the defendants had a long career of public service behind him.94 Was it appropriate

(kalos) to treat such men like slaves, or would doing so itself be shameful (aischros, 24.125)?

Once again, Demosthenes does not provide a clean or conceptually tidy answer. He first attempts to show that it is Androtion and his like who have already forfeited their honor through their crimes and have thus opened themselves up to the demands of justice (labein dikēn). He brings up the same story he told in the Against Androtion, noting that it was Androtion himself who had violated social expectations by unjustly imprisoning sober and respectable citizens (hoi sōphronōs bebiōkotes, 24.126). He goes out of his way to make the money owed a matter of cash taken directly away from the army and the goddess Athena herself, painting the defendants as treacherous, impious (24.177), and, crucially, shameless (especially around money 24.182-183).

Hedging his bets, however, Demosthenes also advances the argument that prison is a form of punishment which is not shameful at all. ““...For the city deemed it right not to trust [the defendants] ...but [thought it necessary for] them to remain there where many other citizens have also remained. For, you know, (kaitoi kai) some are imprisoned on account of fines and some on account of sentencing, but either way they bear it without complaint” (24.132). Even if

Androtion is as respectable as he will surely claim to be, many other respectable people have obeyed the wishes of the jury and spent time in prison. The social meaning of the prison has not

92 See (Mackenzie 1981), pp. 70-80.

93 Cf. Il. 2.260-277, where Odysseus threatens to expose Thersites’ shameful parts (aidō) and proceeds to beat him.

94 See (MacDowell 2009), and see the prosopographical data collected in (Traill 1994).

40 yet entirely been decided, so Demosthenes includes arguments to appeal to both possibilities – that in a democracy every citizen is too high-status to be corporally punished unless he has committed a serious crime, and the opposite argument, that imprisonment, as a democratic form of punishment, should not be thought to violate the social expectations of honor and status accorded to free persons.

The position of the prison within the social economy of shame remains ambiguous even if the scope is broadened beyond Demosthenes’ speech. There is good evidence to suggest the prison developed a reputation for housing a certain type of infamous or “low” character.95 On the other hand, the complaints that are heard from high status figures about their time in chains highlight the physical harm one suffers by being chained up.96 It is not clear whether the reproach (oneidē) they feel at being imprisoned is merely due to the fact of punishment or has some special relation to the demeaning rebuke of being incarcerated.97

C. The gentle way in democratic punishing It remains to discuss one more line of attack on imprisonment which Demosthenes sought to deal with – the question of the civic ethos of Athenian punishment. As with all such speeches,

95 Alexis (frags. K-A 131-2) gives us evidence of thieves and cheats being “hauled off”, and describes the meagre meals of inmates (fr. K-A 220, suggesting that inmates could be supported by a ration rather than by food brought by relatives and visitors). Intriguingly, there is also evidence of the stereotypical figure who “spends more time in jail than his own home” (see Dinarchus, 2.14 and Theophrastus, Char. 6). Of course, that could make it even more effective as a punishment for errant politicians. Both Dinarchus 2 and [Demosthenes] 25, Against Aristogeiton give a colorful picture of the “low characters” who inhabit the desmotērion (discussed in (Hunter 1997)). Taken as a whole, passages such as those from Alexis and Aeschines (1.43, 3.150) suggest that “to drag someone off to prison” (apagein eis to desmotērion) could have an almost idiomatic force of “to punish”. The weight of the evidence supports Allen’s chronological reading and suggests that the prison’s place in the social imaginary was expanding.

96 The formulations used for both the physical pain and political rebuke are strikingly similar: kakopathia, Dem. Ep. 2.17, kaka tōi sōmati, Andoc. 2.15 and oneidē in both authors.

97 Plato saw and exploited a connection between imprisonment and shame, both in the Gorgias and the Laws, as will be shown below, in Chapters Two and Three.

41 the Against Timocrates must be read against the background of Athenian democratic ideology.98

This background has been present in the arguments about the slave/free distinction and the shameful versus the respectable, but there is a third strand of the speech where the meaning of democratic punishment comes to the fore. Athens, rightly or wrongly, considered itself exceptional among Greek states for the “civilized” or “gentle” way its laws functioned.99 For Demosthenes, this gentleness comes from the reciprocal respect citizens feel for one another as a result of social capital built up through repeated interactions.100 It is thus desirable, and indeed possible to punish gently (praōs) because of the prevailing state of concord (homonoia) found in a democracy.101

Once again, the ambiguous status of incarceration creates what Demosthenes fears is an opening for Timocrates to claim that his legislation was designed to curtail a harsh (deinos) form of punishment (24.77) and that getting rid of imprisonment is a benefaction to the democracy

(24.170). Demosthenes even expects that Timocrates will protest against harsh (deinos) punishment for himself given that he was proposing a form of prison abolition, an act that would have been “gentle and moderate” and to the benefit of the powerless.102 Timocrates once again seems to have good democratic values on his side.

98 (D. Allen 1997), drawing on (Ober 1989).

99 On the “civilizing virtues” as claimed by Demosthenes for democracy see (Romilly 1979), (Christ 2013), (D. Allen 2000) p. 177-9 (on the privileged place of “fairness” [epieikeia]), and, for a skeptical view, (Debrunner Hall 1996).

100 The metaphor is Demosthenes’, not Robert Putnam’s. See Against Meidias 21.101, where he speaks of “loans” (eranoi).

101 See Against Aristogeiton I 25.87-90 and (Christ 2013) pp. 213-217.

102 24.190: “He will not, I suppose, spare you the argument that it would be very hard on him (hōs deina an pathoi) to be punished for proposing that no Athenian citizen shall be sent to prison; and that it is for the benefit more especially of the powerless (tōn adunatōn) that the laws should be as moderate and gentle as possible.” (Vince trans., emended).

42 This line of argument forces Demosthenes to make more explicit the distinction he began to develop in the Androtionea between punishments that are used against “the people” (those

“respectable citizens” whom he associates with the jurymen by using the plural “you”) and punishments that are used to put the great and the powerful (hoi politeuomenoi) in their place.103

There are two forms (eidē) of law, the first governs the horizontal relationships between citizens, those relationships where the social capital that accrues among equals is most in evidence; the second concerns the vertical relations between “the people” and “the politicians”. The first sort of law is the sphere of softness, clemency, and civility. The second is the place to be harsh and decisive, so as to keep the oligarchic tendencies of the political class in check.104 Getting rid of incarceration would only be “civilized” (philanthropōs) if it obtained in the first sphere of law (just as it is the first sphere that Androtion and Timocrates violated when they dragged “respectable men” out of their homes). Demosthenes cannot deny that prison is harsh, but it is altogether appropriate for public criminals and public crimes.

In positing a conceptual distinction between two reasons for imprisonment, Demosthenes is groping towards a more explicit theory of how the justification of a particular form of

103 The argument that imprisoning the rich and powerful has an explicitly democratic potential is found in three places in Demosthenes – the pair discussed here and On the Trierarchic Crown (51, of contested authorship). In On the Trierarchic Crown, once again the comparison is made between rich trierarchs who can imprison sailors with impunity and the corruption of the trierarchs themselves, who rarely end up in prison. “How can this appear equal and democratic?” (51.11-12).

104 24.192-3, also worth quoting at length: “Again, with regard to the plea that merciful and humane laws are good for the common people, you must consider this. There are two sorts of problems, men of Athens, with which the laws of all nations are concerned. First, what are the principles under which we associate with one another, have dealings with one another, define the obligations of private life, and, in general, order our social relations? Secondly, what are the duties that every man among us owes to the commonwealth, if he chooses to take part in public life and professes any concern for the State? Now it is to the advantage of the common people that laws of the former category, laws of private intercourse, shall be distinguished by clemency and humanity. On the other hand it is to your common advantage that laws of the second class, the laws that govern our relations to the State, shall be trenchant and peremptory, because, if they are so, politicians will not do so much harm to the commonalty. Therefore, when he makes use of this plea, refute it by telling him that he is introducing clemency, not into the laws that benefit you, but into the laws that intimidate politicians.” (Murry trans.).

43 punishment relates to a broader theory of punishment. Extrapolating out from Timocrates’ argument (or, in fact, Demosthenes’ own approach in Against Androtion), one sees a line of argument that stresses the attenuation of harshness – not because democracies are “soft on crime”

(the dependence of Athenian justice on righteous anger is well-studied), but because democracies shouldn’t focus on past events, but instead on what is necessary to maintain democratic concord.

In order to justify being “harsh” in this context, Demosthenes needs to redirect the attention of the jurors from the past – the harm done, to the future – the effect of punishments on behavior to come. Legislators and law itself are concerned with the future – “how people should behave, and how things should go” (24.116). The problem with focusing too much on the harshness of a penalty is that is misses the goal of law – to manage the future. Getting rid of imprisonment is not only a threat to the rule of law, Demosthenes argues, it decreases the ability of the democracy (in this case, the institution of the courts) to “make things go better [for the people]” in the future

(24.209).105 This very point is given a place of honor in the peroration, where the jury is urged to get angry (orgisthēnai) and to correct (kolasai) criminals by making an example of them, for the purpose of punishment in a court is to habituate (ethizein) and to teach (prodidaskein, 24.218) the many.106

The question of imprisonment causes Demosthenes to enter a series of paradoxes and entanglements that it’s not clear he was able (or intended) to solve. Chief among these is tension between the fact that imprisonment has the potential to be an instrument of democratic equality,

105 Demosthenes is not entirely clear in this passage about what benefit the people derives from incarcerating people. It may be possible that this benefit is the pleasure of vengeance – certainly that is a traditional view available to Demosthenes and the jurors – but taken together with 24.116 and 24.218 it seems that an educative/habitual view of the law as improving human behavior is meant.

106 It may be right to recall here Demosthenes’ outrage that those who are correctly habituated (hoi sōphronōs bebiōkotes, 24.126) should be subject to imprisonment. The idea that punishment is a form of prophylactic civic education is also found in On the Trierarchic Crown (51.12).

44 and the problem that by subjecting citizens to chains, uncomfortable boundaries between slave and freeman are necessarily breached. In this way, the prison butts up against the great “unthought thought” of Athenian democracy – equality can only proceed so far in a society founded on a central fact of inequality.

The angle from which imprisonment should be considered was equally contentious – was it a leveling down, where even oligarchs suffered the degrading experience of chains, or was it a normal experience of democratic life, one of which no citizen should feel particularly ashamed?

Here there need be no contradiction between the two. For the aristocratically minded, democracy always encroaches on the social categories of shame and social identities maintained through an economy of esteem.107 For the equality-minded, even if this is so, democracy brings with it resources to construct a new and different sort of social order, and in this its chief means are, as

Demosthenes insists, the laws, including the laws about imprisonment. Seen in this light,

Demosthenes’ reflections on law, imprisonment, and punishment become not far distant from a performance of public political theory.108

III. The future-directed nature of democratic punishment

Demosthenes’ reflections on law, imprisonment, and punishment come at the end of a century of discussion in Athens over how and why to punish wrongdoers in a democracy. What makes the Against Timocrates unusual is the explicit way it takes up the question of which techniques of punishment are appropriate for the city to use. In order to fully appreciate the stakes

107 For a sympathetic account of this “aristocratic” moral psychology, see (Williams 1993). Athens as a “shame culture” and its relevance for punishment is discussed at length in Chapter Three, Below.

108 A point that should no longer surprise us. See (Ober 1989) and (Wohl 2010), among many others.

45 in considering which punishment fits which crime, it is important to understand the particular ideological tradition in which Demosthenes wrote.

A recent study of the theory of punishment in the 4th century orators argues for the clear influence of the Platonic theory of reform on a number of political figures including Lycurgus,

Hyperides, and Aeschines.109 The student of Athenian politics will know that at least two of those three figures were sworn enemies of Demosthenes, and indeed, the typical Platonic concern with

“reform” – that is, the inculcation of virtue in the criminal and in others, is absent from

Demosthenes.110 But other “Platonic” ideas about punishment, that it is directed towards the future rather than the past, that it is educative, in some sense, for both the criminal and for the city, are, we have suggested, clearly present in Demosthenes. If our analysis is convincing, then the intellectual background for the debate over the prison takes place within a context of broad social consensus about some important penological principles. In order to identify those principles, it may be instructive to turn back the clock one hundred years before Demosthenes and look at the earliest theorist of explicitly democratic punishment, a thinker who influenced both Plato and the democratic mainstream.

Protagoras of Abdera was an associate of Pericles and engaged in both political theory and political practice.111 According to Plato’s depiction, Protagoras was famous for claiming that political virtues are tied to education. Unvirtuous behavior – “injustice and impiety – collectively

109 See (D. Allen 2012), especially pp. 92-106.

110 What Demosthenes disparages in a sarcastic aside, that by forgoing this punishment the jury would be “saving the criminals” (24.116) is precisely what Plato desires from punishment!

111 He wrote the law code for the colony of Thurii and published a work that at least one 4th century historian thought anticipated the chief claims of Plato’s Republic. DK 80 A10, A1, B6. For more, see (Kerferd 1981), pp 42- 44. Scholars since Diehls agree that the “great speech” placed in his mouth by Plato in the eponymous dialogue at least approximates some of his positions, though precisely how much is open to debate. For an extensive discussion of this question, see (Farrar 1988).

46 the opposite of the political art” is met by all (normal) people with “anger [thumos], correction

[kolasis], and chastisement [nouthetēsis]”, in short, with education (Plato, Prot. 324a1, 324e2).

Protagoras’ claim is that because punishment of political crimes aims to correct past behavior, the practice itself assumes that the virtues whose deficit it aims to fix could be learned, indeed will be learned by the criminal and others. For

no one corrects the unjust with only the crime in mind and for the sake of that crime, as long as they’re not imposing penalties irrationally [timōreitai alogistōs]112 like a wild beast. But the one who undertakes to correct according to reason [meta logou] doesn’t penalize for the sake of the past crime - for ‘what’s done cannot be undone’ – but for the sake of the future, so that the neither the doer himself not anyone else will do wrong again, seeing him punished. (324a6-b5)

If the argument depends, as it would appear to do, on the reasons why states punish criminals,

Protagoras is on very shaky ground, for the assertion that punishment aims at improvement rather than at making the criminal suffer goes against virtually every known idea about punishment and desert in ancient Greek literature and political thought down to the late 5th century.113

If, however, we take Protagoras to be offering a new account of rational punishment, then the argument is not only “startling,”114 it is rather good. The fulcrum of Protagoras’ reasoning is at line 324b1: only punishment which aims at the future can be justified, for what’s done is done (as proverbial for Protagoras as it was for Shakespeare). Protagoras is prosecuting

112 A note on translation: I translate timaō as “penalize” because to translate it as “punish” would be to beg the question and miss Protagoras’ (and Plato’s) transvaluation of punishment as an institution (perhaps, after all, imposing penalties is neither sufficient nor necessary for punishing). Kolazein I translate as “correction” or “discipline”, though sometimes in Plato kolasis can be treated as “punishment” itself. For terminological analysis see (Mackenzie 1981), (D. Allen 2000), and (Saunders 1991).

113 cf. Aeschylus, Choephoroi 313: δράσαντι παθεῖν, / τριγέρων μῦθος τάδε φωνεῖ. For a discussion of the retributive aspects of Greek penal thought see, inter alia, (Adkins 1970), (Lloyd-Jones 1971), (Mackenzie 1981), (Saunders 1991) and (D. Allen 2000).

114(Saunders 1981), p. 132.

47 what Nietzsche called “the spirit of revenge.” There is no gain for the state or for the criminal in obtaining retribution for a past deed; in fact, revenge is primitive, beastly, inhuman. It would be wrong to call this a utilitarian theory of punishment.115 As we have been at pains to show, the context for this passage is a broader theory of education, and indeed Protagoras makes clear that one is punished so that one might become better (beltiōn genētai, 325a7), the same phrase he used to advertise his own services as educator.

Retributivist critics of the moral education theory of punishment often point to the fact that a penal code must have reference to a past crime in order to correctly “distribute” punishment, and that it a past event is ultimately the ground for punishment. To this Protagoras has a ready analogy at hand – the educational metaphor. Punishment should be a retribution for crime in the way harsh comments on a bad paper are “retribution” for bad work. The state, and its lawmakers, are in precisely the relationship to the student that writing instructors are to elementary students (326d).116

More problematic is a charge leveled by M.M. Mackenzie – that of “institution begging”

– assuming the institutions of punishment as they exist can fulfill the philosophical task he assigns to them. Protagoras does not explain in any detail just how punishment improves the punished. He notes that it can serve as a deterrent (apotropēs…heneka, 324b6), but this does not explain the strong claims about correction and rebuke. The only punishments actually mentioned in Protagoras’ speech are execution and exile (325bc), which are reserved for “incurable”

115 Pace Saunders, ibid..

116 For the retributivist challenge, see (Taylor 1976) ad loc., where he also notes the shared Greek idea that laws could and should educate (on this see (Jaeger 1938) II. p. 109). For more sophisticated philosophical challenges, see (Mackenzie 1981) and (Shafer-Landau 1991), both of who begin from the premises of liberal theories of autonomy. Of course, the autonomous individual (liberal or not) does pose a problem for Protagoras’ theory of education and democracy (see (Farrar 1988)), as Plato understood and addressed in the Gorgias.

48 (aniaton) cases.117 The use of the medical metaphor suggests that punishment does not only teach, it heals. What Protagoras does not tell us is how.

Plato was well aware of this weakness in Protagoras’ theory, and exerted considerable effort in answering it, but Plato’s solution must wait for a different opportunity. For the moment, we will limit ourselves to Protagoras’ democratic theory of punishment, however flawed, and its context. Protagoras’ personal ties to Pericles and his circle have been mentioned (and are highlighted by Protagoras’ known association with Pericles’ sons, both in Plato’s dialogue and in the surviving biographic witnesses). There is some evidence to suggest, however, that

Protagoras’ arguments made their way into the wider democratic discourse in Athens. Pericles’ claim in the Thucydidean funeral oration that Athens is “a lesson [paideusis] for Greece” has a distinctly Protagorean echo.118 In fact, Plato has Socrates respond to Protagoras’ great speech with the observation “someone could probably hear a very similar speech from Pericles, or another of the ones capable at speaking” (329a1-2).

We have at least one speech that fits Socrates’ bill. In the famous debate in Thucydides over the fate of the rebellious Lesbian city of Mytilene119 one of the speakers, the otherwise unknown Diodotus, takes a stand on punishment that is strikingly Protagorean. He begins by praising the idea of democratic debate itself, both for its usefulness for good deliberation

(euboulia) and its instructiveness for action. The opposite is “uneducated” anger (meta

117 The historical record may provide some evidence that as a law-giver, Protagoras was quite an imaginative punisher – decreeing public transvestitism for deserters and pacifists. See (Muir 1982), p. 20.

118 Thucydides Hist. II.41.1. For the 5th century idea that there are better rational modes of education than the traditional Homeric modes, cf. Xenophanes DK 11 B10.

119 Thucydides, Hist. III.37-50.

49 apaideusias). The Protagorean theme of euboulia appears throughout the speech,120 but it is in his dismissal of the retributive theory of punishment that Diodotus’ similarity to Protagoras is clearest. “Our dispute, if we are sensible, will concern not their injustice to us, but our good deliberation (euboulia) about what is best…In my opinion what we are discussing concerns the future more than the present.”121 Here, once again, is the idea that democratic deliberation goes hand in hand with a rejection of retribution, and opens itself to the possibility of instruction.122

Diodotus is in a struggle for the legacy of Periclean democracy against the new demagogic party of Cleon (who seeks to punish according to wrath, orgē). Taken together, these sources give a sense of at least one influential elite Athenian attitude about what makes democracy work and how education and punishment fit into a cohesive democratic worldview.123

In light of the Protagorean theory of punishment, Demosthenes’ appeals to habituation and teaching gain a new significance. It is true that Demosthenes has no interest in making criminals better, but his concern for the “future-directed” aspects of punishment suggests a family resemblance between his ideological presuppositions and those of Protagoras. If the Protagorean theory should not be said to be “utilitarian”, perhaps the term can be applied, if only loosely, to the arguments in Against Timocrates and On the Trierarchic Crown. Thus, two moments of

120 Cf. For euboulia as a particularly Protagorean topos, see (Woodruff 2013).

121 History III.44.3, Gagarin and Woodruff trans, adopted from (Gagarin and Woodruff 1995).

122 Diodotus speaks of criminals “changing their minds” (metagnōsai) and “making an end of their error”, III.46.1. For the Protagorean/Periclean/democratic overtones of Diodotus’ speech, see (Yunis 1996), pp. 92-99. It is even possible that the first ship to Lesbos tarried because the democratic sailors were uneager to carry out such a retributive punishment, an “unwelcome mission” in Thucydides’ words (III.49.4).

123 (Schiappa 1991) goes so far as to suggest that Protagoras’ attitude towards contrasting arguments (“concerning everything there are two logoi each opposed to the other”) played a role in the development of Athenian democratic institutions. This is a counterpoint to G. E. R. Lloyd’s arguments about the influence of political practice on science. See, e.g. (Lloyd 1979).

50 Athenian democracy provide evidence of the political viability of two different species of future- directed punishment.

Conclusion

This juxtaposition of Demosthenes and Protagoras gives the arguments in the Against

Timocrates a longer democratic pedigree, but it also sharpens a major, unanswered question that lingers for both thinkers. Demosthenes produced a cohesive picture of imprisonment as a punishment both necessary to maintain the legal order and beneficial to the demos. He assigned incarceration a role within the democratic legal order and insisted that it was compatible with the benefits of a harmoniously functioning democracy. What he did not do was explain why specifically the prison should have this role, that is, whether imprisonment is unique in any way among the corporal punishments available to an Athenian jury (aside from its being in some way new or less familiar than other forms).

Similarly, Protagoras (as far as can be determined) presented an influential theory of why the political art requires punishment, and what the aims of that punishment should be. He did not, however, explain which punishments would be suited to carry out the aims of reform and inculcate virtue in the criminal and other citizens. We are left with a fragmented picture of why democracies punish, and even what punishments are in and out of bounds in a democracy, but a crucial piece of the puzzle – why the democratic punishment of the prison is suited to the democratic aim of human improvement (whether broadly “utilitarian” or “reformist”) is still missing. The charge of

“institution begging” could be made to stick to either Demosthenes, Protagoras, or both.

The classical historian may add another set of worries to the story told in this paper.

Although the arguments in Demosthenes’ speeches attempt to situate incarceration within the

Athenian democratic consensus, it is not clear that Demosthenes is actually talking about

51 something so different from debt imprisonment. Imprisonment for failure to pay a public debt is a far cry from an institution of imprisonment that has fixed terms, varying punishments according to type of crime, and courses of individuated treatment and parole. Athenian imprisonment, even as excavated from a close reading of the Demosthenic corpus, and even given shifts in Athenian attitudes towards “future directed” punishment is still a far cry from the modern penitentiary.

This is a fair complaint. Read alone, Demosthenes cannot provide definitive evidence for the social meaning of the prison. What the discussion of Demosthenes and Protagoras can do, however, is go some way towards expanding our understanding of incarceration, its Athenian origins, and its meaning for democracy. As we’ve seen, incarceration developed as a penal tool throughout the course of the 4th century. When it came up for discussion, it was the ideas and claims of a particular democratic understanding of public life that were used to attack or support the practice of locking people up. Incarceration, in its novelty, also points out another new aspect of Athenian democratic punishing – a consensus, across political and professional lines, that a democracy punishes for its own future good, not for its past satisfaction.

The Athenian prison itself may have been an artifact of pre-democratic history, of Solonic debt forgiveness or the paranoia of the Thirty. But in the 4th century, the meaning of the prison became a point of democratic contention. Even if the prison was just one in a collection of “gentler” punishments fit for use on citizen bodies, the discussion around it allowed us to identify a coherent set of aims in democratic punishing. Plato, whose powers of social observation were surely unparalleled, saw what his peers could not – that not every form of punishment is suited to accomplish the task for which it is being used, and that penal incarceration had a far greater potential for changing the future behavior of criminals than had yet been realized. In the next chapter, we will examine Plato’s use of the prison in detail and attempt to explain just how

52 imprisonment and reformation first came to be conjoined. For Plato, the link between rehabilitation, education, and incarceration is not an accidental one, it is, in the fullest sense, essential.

53

Chapter Two: Incarceration as Theory and Practice in Plato

The first chapter aimed to give a provisional account of Athenian prison and its social meaning. While the meaning of democratic punishment and the pronounced preference for future-directed punishment are important for understanding the history of incarceration in the longue durée, it must be conceded that Athenian incarceration itself was an underdeveloped institution, legally and theoretically.124 In his treatment of incarceration, Plato, an exact contemporary of the politicians who populated Chapter One, took it upon himself to provide the systematic and internally coherent theory of punishment – one of the many theoretical structures that he felt his fellow Athenians lacked.125 In the process, he transformed incarceration from one punishment among many into the premier method for psychic reform.

As we have seen, imprisonment was a plausible future-directed punishment in democratic

Athens, at least according to some intellectuals and politicians. Plato went beyond whatever he may have seen on the streets of Athens and positioned the prison as a capstone in his comprehensive theory of why, and especially how to punish. Plato’s novel and influential theory of reformative punishment is well-known, but along with reform came another, subtler innovation. For the first time in the history of political thought, a philosopher took seriously the idea that why and how we punish are really two parts of the same fundamental social and philosophical question. In practice, this means that Plato is as interested in the techniques used to

124 So (Hunter 1997) and (Hunter 2008).

125 See, for instance, Gorgias 527de: “For it’s a shameful thing for us, being in the condition we appear to be in at present – when we never think the same about the same subjects, the most important ones at that – to sound off as though we’re somebodies. That’s how far behind in education [paideia] we’ve fallen. So let us use the rational account [logos] that has now been disclosed to us as our guide…” (Zeyl trans., emended, in Cooper ed. [1997]).

54 punish and in the psychologies of the criminals who are punished as he is in the justificatory structure of punishment as a concept.

This chapter will examine the prison as a privileged site in Plato’s thinking – the site where the rigor of Socratic moral reasoning meets the reality of human bodies and minds. We will begin in medias res – with the blueprint of a prison system sketched by Plato in what is widely agreed to be his final work – the Laws.126 After presenting Plato’s radically innovative institutional design, the chapter will go on to examine the philosophical foundations on which

Plato constructs the idea of a reformatory – first through his theory of punishment and then through moral psychology.

I. The Prison in the Laws 1. Prisons

The prison that Demosthenes, Timocrates, and the other figures from Athenian history argued about was a building somewhere near the Athenian marketplace. It may not have been a purpose-built structure and is unlikely to have had much differentiation between the types of people being held within.127 The difference between this simple structure, whatever it looked like, and the prison system in the Laws goes some way towards distinguishing incarceration as a piecemeal development in Athenian jurisprudence and the fully imagined institution, cut from whole cloth, that appears as part of Plato’s philosophical-political experiment.

In the Laws, Plato provides us not with one novel prison-building, but three. The first is something between a prison proper and a city jail. It is common to all sorts of criminals, and

126 According to Diogenes Laertius, Phillip of Opus discovered and edited the wax boards containing drafts of the dialogue after Plato’s death. See Diog. Laert. iii.37.

127 For the interior of the prison, see (Hunter 1997), and above, Chapter One.

55 located near the central market place. In some respects, this building is rather like the Athenian jail where Socrates drank his hemlock – the building Timocrates and his associates so wanted to avoid. The Athenian Stranger’s128 explanation that this jail is “for the sake of securing the bodies of the many” (908a) has a distinctly demotic ring to it, and suggests that he is distinguishing the use of incarceration for punishing and remanding bodies from the use of incarceration for soul- craft. Dealing with bodies takes place in one setting; souls are the concern of the other two prison-buildings. In the text of the Laws this first prison is usually referred to by the term desmoi

– bonds. The jail will be the site of penal incarceration, but of a very different sort than goes on in the prisons – the jail represents something close to incarceration as a corporal punishment

(much as it was treated in the sources from Chapter One).129

Perhaps to separate them from the jail (there is no Greek word for “prison”), Plato gives each of the other prisons a proper name. The first is called the sōphronistērion (“Right-Think

Tank”),130 and it is located “near where the Nocturnal Council meets.” This casual aside is the first mention in the Laws of the Nocturnal Council, ultimately the supreme constitutional body of the state. The introduction of the Council alongside the sōphronistērion is no coincidence – the roles of the two institutions are intimately intertwined. The third prison is to be built in the

128 The Athenian Stranger, an unnamed old man visiting the island of Crete, is the main speaker in the Laws.

129 This first prison may look like the prison discussed in Chapter One, but it can unambiguously be used to punish crimes as varied as assault (880cd), public debt (855b), violations of exile (864e), unseemly business dealing (919e- 920a), and disrespect of parents (932b). Additionally, unlike the Athenian prison, even this “demotic” prison works on the principle of ordered prison terms (an apparent innovation, cf. (Hunter 2008), p. 197). The sentences, one to three years in the cases above (with the possibility of extension), are shorter than those of convicts in the other prisons. As will be explained below, this is because incarceration as a corporal punishment performs a different form of psychic correction from rehabilitative incarceration.

130 σωφρονιστήριον, a word of Plato’s coinage almost impossible to translate. It is at once a punning rejoinder to Aristophanes’ mocking satire of a Socratic club (the φροντιστήριον, or “Think Tank”, Nub. l. 94), and, as (Schöpsdau 2011) ad loc. and (Wyller 1957) note, a pun on the idea that prudence is “the salvation of the mind” or soul, according to Crat. 411e (again, in contrast to the first prison that “saves bodies”).

56 middle of nowhere, in a place as desolate and wild as possible. It is to be called “a name suggestive of punishment.” Some have, rather literally, thought that this means its name is

‘punishment,’ but they miss a characteristic bit of Platonic subtlety.131 In his pseudo-scientific eschatology (discussed below), Plato had already discussed what names are most effective in causing the fear of punishment – “Hades and the like” (904d2).132 This last prison will be called

“Hell” or “Tartarus”.133

2. Atheists

In contradistinction to the jail, which serves many functions (including, but not limited to, penal incarceration) the two prisons exist in relation to a single family of crimes – impiety in word or in deed. There are three forms of atheistic impiety punished by imprisonment – out and out atheism (henceforth just “atheism”) deism; and traditionalism. These three can be further differentiated into two groups, the “open” and the “devious” (cf. 865c). .134 Despite its focus on the two types of full-on atheist, the text seems to imply that all six forms can be divided into the honest and the “hypocritical” types.135

Plato’s Athenian Stranger further clarifies what he means by describing in detail the character and behavior of the two most important subtypes of impious criminal. Some atheists,

131 E.g. (Saunders 1991) and (Hunter 2008).

132 See (England 1921), ad loc., and (Strauss 1975) p. 174.

133 I conjecture that the technical name of this prison will be Tartarus, after the lowest realm in Hades where impious figures of myth such as Sisyphus, Tantalus and Ixion were imprisoned, along with the Titans. Fittingly, at 701c, atheists are compared to the rebellious Titans.

134 This is a distinction that is central to all the other “myths of punishment”, but is conspicuously absent from the mechanistic myth earlier in Book X. See (Stalley 2009). For why the devious atheist is also incontinent, see below.

135 Εἰρονικόv, literally, “ironic” – another Socratic hint. My interpretation depends on a number of textual-critical decisions- on the whole, I follow the readings in (Wyller 1957).

57 “although not believing the gods to exist at all, are by nature attached to a just way of life, and hating to become wicked, and scorning to venture to do injustice or actions of that sort, flee the unjust among men and are drawn to the just” (908b4-8). These are the “open” sort of the out and out atheists. This “just” though errant atheist “would be full of bold language [parrhesia] about the gods both at sacrifices and oaths and, and as he laughs at the others, makes others of this sort, as long as he goes unpunished” (908c6-d1). He should, in short, be easy to pick out in a crowd. It seems, from this brief description that this honest atheist is so excited to share his views and exchange opinions in public, that he doesn’t really care where he does it, who hears, or what the consequences might be.136 He means no harm, he just happens to have made some errors about some important truths.

The “devious” subset of full-on atheists on the other hand, “besides the belief that ‘all is empty of gods’ fall incontinent regarding pleasure and pain, and are possessed of strong memories and keen learning” (908b8-c4). This division reflects the characteristic Platonic concern (visible, as we will see, in the Gorgias and elsewhere) that intellectual error can lead to incontinence concerning pleasure. In the Laws, criminals whose error has spread beyond their souls to the realm of bodily urges will find themselves in a different penal track than those who believe wrongly but behave well. The open atheists, it seems, have not been fully “corrupted” but their “devious” counterparts not only believe wrongly, but act wrongly too.

Though holding the same opinions as the other kind, reputed to be naturally gifted,137 [they are] full of guile and trickery, from whence come seers and many fraudsters and those who set in motion schemes about everything. It is also from this sort that tyrants

136 This characteristic of bold public speaking is one of many Socratic references in the prison passage. The topic of Socrates in the Laws is one for another occasion although see (C. J. Rowe 2003).

137 Cf. Gorgias 484b-486c, where the word εὐφυής is used 3 times by Callicles to describe someone who would suffer an ignominious death as a philosopher (as Socrates did), but who would prosper if she accepted the principle of “the right of the stronger”. The MSS reading, ἐυτυχής, is also reminiscent of the Gorgias and other dialogues, where tyrants and sophists are erroneously thought by the many to be “fortunate”. The tortured syntax is Plato’s.

58 and demagogues and generals come. And those who have contrived private mystery rites, as well as the schemes of the so-called “sophists” (908d1-7).

The distinction that Plato is drawing is familiar from his other dialogues. On the one hand, a just person who has merely committed an intellectual error, on the other, tyrants, sophists, and every other type of Platonic villain ruled by passions and pleasures.

3. Moral Flaws and Forms of Punishment

Each of these six subdivisions, the three types of atheist in their two forms, deserves a punishment “neither equal nor alike”. Plato maps out the differences in forms of punishment through careful terminological distinctions – all within the general family of “future-directed” punishment. Penologically, all three categories of “honest” unbeliever are all to be incarcerated with an eye towards chastisement,138 while the devious heretics deserve “not one, nor two deaths only,” which must mean incarceration of a very different sort. This is the first major distinction – between future directed punishment that is clearly reformative (“chastisement”) and that which, while future directed, is less clearly beneficial to the person undergoing it.

Plato uses a new term to describe the error that the three types of “honest” unbeliever have in common - “mindlessness” (anoia), literally, a lack of reason (nous).139 This is because only the honest atheists truly fit the category of “foolishness” (amathia) – pure intellectual error, unmixed with injustice.140 As Plato hints at various places, deists lack the intellectual ability of the atheists to reject god fully (hence their unbelief must spring from unintellectual, that is to say

138 νουθέτησις – this word has an important role in Plato’s vocabulary of punishment. The same word is used at Sophist 230b to describe the proper corrective for “foolishness”.

139 The word plays any number of prominent roles in the Laws, including referring to the rational god who rules the state, and reminding the reader of the rational nature of law (νόμος, cf. 714a, 957c and elsewhere). See (Abolafia 2015), passim.

140 See Fig. 1. For the theory of moral psychology behind these distinctions, see below.

59 emotional sources, 900ab), and traditionalists are “the most numerous and the worst” of all the heretics – hoi polloi, as it were.141 Despite this technical difference, both the general flaw of

“mindlessness” and the more specific characteristic of “foolishness” will be dealt with at the same location. All honest unbelievers (those “without wicked intent or habits”) will be imprisoned in the sōphronistērion.142

141 948c.

142 It is possible to construe the passage differently by deleting a “not” at 909b1. In this reading only the “pure” atheists go to the sōphronistērion and all others find their way to the extreme prison. This reading has lost favor since the translations of Saunders and Pangle, and, as we will, see would fail to do justice to complex relationship between form of punishment and the individuated psychological profiles of the criminals.

60

The prisons of the Laws and their inmates Name Sōphronistērion Tartarus of Prison Subtype “Honest”/Just Devious Psychic Mindlessness Foolishness Injustice Error (anoia) (amathia) (adikia – ignorance combined with corruption by pleasure) Type of Pure Atheists Receive at least Life inmate (“Don’t five years of imprisonment believe the elenchus without gods to N/A (dialectical human exist”) refutation) contact or parole Deists Receive at least Life (“Think the five years of imprisonment gods “chastisement” without

uncaring”) (nouthetēsis – N/A human simple contact or instruction) parole Traditionalists Receive at least Life (“Think the five years of imprisonment gods can be “chastisement” without

bribed”) (nouthetēsis – N/A human simple contact or instruction) parole Figure 1

61

A. The sōphronistērion

The first detail given about the internal workings of the reformatory prison is the minimum length of the sentence (itself a novel invention).143 There is a five year mandatory minimum sentence (although given the variety of different types of inmate under one roof, it seems probable that terms of different length would be required for the “foolish” atheists and the other sorts of non-believers).144 During the prison term, inmates have no interaction with any citizen except the members of the Nocturnal Council. The councilors keep close watch on the prisoners (koinōnountes), consulting with them (homilountes) for “chastisement and the repair of the soul” (909a4-5). Again, Plato’s conceptual nuance is apparent in the careful use of terms. By actively involving themselves in the prisoners’ rehabilitation, the leaders of the state encourage them to follow their example.145

There are also important distinctions to be made concerning the types of correction carried out. Within the sōphronistērion cohabit three types of honest but ignorant criminals, one whose error is purely intellectual (the “foolish”), and two other sorts who have the more dangerous psychological fault of “mindlessness.” Each of these types require an appropriate course of instruction. The two activities of the Nocturnal Council, chastisement and “salvation of the soul” should probably be understood to refer to two different types of treatment,

143 Even in discussions of jail time as a τάξις (see above, Chapter One), there is no evidence for standardized “terms”, let along minimum sentencing requirements. Plato realized the usefulness of sentence length in establishing proportionality between punishment, crime, and the desired effect on the criminal, a discovery later echoed by Beccaria (see below, Chapter Five).

144 A suggestion made by (Wyller 1957), p. 308. It is unclear which crime will receive the longest sentence. Atheists need serious training (see below), but Plato refers to the traditionalists more than once as the “worst” of the three. See (Mayhew 2008), p. 200.

145 See (Saunders 1991), p. 310.

62 corresponding to the two elements of liberal education (and, as will be explored below, corresponding to two distinct psychological profiles).146 Chastisement (nouthetēsis) is described as a paternalistic form of teaching, appropriate for father figures instructing childish error.147

Literally, this word means “putting mind (nous) into” – giving the prisoners the fully functioning rational faculty that they lacked when they suffered from mindlessness (anoia). This will be the corrective course for honest deists and traditionalists.

The other element of liberal education is “cross-examination” (Socratic elenchus). It seems likely that, for the intellectual atheists, the Nocturnal Council gives them exactly the sort of thing they like – a chance for argument. Of course, the Nocturnal Council knows its arguments are correct (it is unclear, as of yet, whether these arguments are precisely those listed in Book X, or perhaps others like them), and can have good hope, given the long period of isolation, of convincing their charges. This form of learning (manthanein) counteracts foolishness (amathia). On the whole, this five-year period of intensive education sounds not unlike a particularly rigorous and restrictive college (or, as Wyller has it, Klosterschule).148

Another innovative, yet familiar, feature of this prison is the system of parole. “When their time of imprisonment is up,” if the inmates of the sōphronistērion “should seem to be reasonable” (sōphronein) – that is to say, if the prison has lived up to its name – “let them dwell among the right-thinking (sōphrones)” (909a5-7). If, after being released, an inmate is convicted on the same charge, he is to be executed. Recidivism, in the case of Plato’s prison, is to be

146 Identified at Sophist 229e-230a. Thus, while following Wyller’s text, I retain an important element of Saunders’ interpretation – that there is a qualitative difference in the treatment of the “atheists” and the other sorts of unbelief, even within the same prison. See (Wyller 1957), p. 297 and (Saunders 1991), p. 308.

147 Only partially intellectual ignorance is described at 863d1 as “childlike” – the significance of this moral psychology will be explored more fully below.

148 (Wyller 1957), p. 313.

63 treated as a sign of incorrigibility. The possibility of parole implies, as might be expected, the necessity for some form of surveillance apparatus, which is indeed hinted at later (964e). In a sense, this prison carries with it all the most radical possibilities of a forward-looking theory of punishment. It is completely and utterly oriented towards rehabilitation and the “improvement” of the criminal. Unlike the punishments of the normal criminal law, it is very easy to see how the

“punishment” described (imprisonment, with lessons) might accomplish its task. Most intriguingly, philosophical dialectic, which exists in other dialogues like the Gorgias in a playful, metaphorical relationship with punishment and improvement (as if the best punishment were always being beaten in an argument), is presented here as a literal penal solution for a specific psychological profile (the “foolish”) criminal.

B. Tartarus

If the sōphronistērion represents the extreme of the humanistic elements in Plato’s penology, the second prison, “Tartarus,” brings the punitive undercurrents into sharp contrast.

For the devious criminals

are like wild beasts, either not believing in the gods, or believing them uncaring, or vulnerable to bribes; holding mankind in contempt, they charm the souls of many of the living, though claiming to conjure the souls of the dead; and promising to persuade the gods, beguiling them by sacrifices, prayers, and hymns, they attempt to utterly destroy private citizens, whole households, and cities, [all] for the sake of money (909a8-b6).149

They are to be sent to the isolated prison in the countryside. There, by law “no free person whatsoever should approach” though “a ration fixed by the law-guardians shall be brought by slaves” (909b8-c4). Such a criminal, the “devious” subset of all three heresies, is denied proper

149 I do not bracket μή at 909b1, perhaps the most important textual choice in the whole passage, showing that the prisons are divided by “devious” and “honest” criminals rather than by types of unbelief. For the most thorough discussion, see (Wyller 1957) passim. Ultimately the conceptual clarity of the passage with the moral psychology outlined elsewhere requires such a choice, also endorsed by (Saunders 1991) p. 305.

64 burial. Even the children of such a criminal are stripped of their family lineage and made “wards of the state.”150

Unlike the sōphronistērion, which puts into institutional reality principles and concepts familiar from much of Plato’s thinking on punishment, the Tartarus prison is unlike anything else in Plato. It has no claim to any reformative goal. Its inhabitants are incurable, but denied the death penalty usually favored by Plato (who argues elsewhere that death stops the corrosion of a bad life). Surely the only future-directed explanation that can be mustered for these isolated, austere punishment is a form of deterrence – the harsh location and conditions a version of the principle of “less eligibiliy”.151

By invoking the mythical language of the underworld, the prison’s name and function also invoke the traditional Greek (non-Platonic) language of purely retributive punishment

(timōria). This is clearly by intention. Earlier in the Laws, Plato subtly collapses the distinction between deterrence and retributive punishment, defining the latter as “attaching one’s self to the company of the wicked” (an activity that, as opposed to “true punishment”, makes people worse) and “being destroyed in order to save many others” (728b). The way those two elements fit

150 (Schöpsdau 2011) ad loc. notes that even the idea of a state-run office for orphans seems to be Plato’s own invention. As for non-burial, in the Laws, as opposed to Sophocles’ Antigone, there is no “unwritten law” that can overturn the edict of the state. In Magnesia, Antigone would be tried for impiety.

151 Some have been puzzled by the penology of this prison, judging it inconsistent with the Socratic theory of punishment as improvement. Saunders, in an otherwise excellent discussion of the prison passages, calls this prison “retributive” ((Saunders 1991) p. 312n68). It is not inconsistent so much as exceptional. This is the only moment in Plato’s corpus where the secondary rationale for punishment – deterrence, becomes primary. Usually Plato is at pains to adduce a punishment that makes sense both from the perspective of society and from the perspective of the punished (rightly construed). He often includes the death penalty as a punishment that deters and, understood correctly, saves the soul from becoming worse. Why not apply the death penalty here? For those atheists who do not believe in an afterlife, death might seem, as Socrates proposes in the Apology, to be a “gain” (kerdos). And, in the Laws itself, death is described as “the smallest of evils” (854e). For all others, like the traditionalists who have pedaled a populist picture of the gods, a more forgiving afterlife might await. The state cannot administer a deterrent penalty that the criminal would not experience as deterrent. Somewhat perversely, the model here seems to be Socrates, who was famously undeterred by the threat of death.

65 together is not made clear in the earlier passage, but makes perfect sense in the context of a prison for incorrigibles. The exceptional status of the fully corrupted, devious atheists as criminals who cannot be convinced makes them unique in the Platonic treatment of punishment.

They must serve as a deterrent – and their punishment can only make sense from the perspective of the city, never from their own, perspectives. A clue to Plato’s reasoning can be gleaned from the use of the word “beastly” (thēriōdēs). The human potential to learn and change is essential to the justification for future-directed punishment, from the Protagoras onwards. It is the inability of these criminals152 to learn which places them outside the boundaries of human civilization and civilized punishment.153

If this analysis of the prison is correct, then the traditional eschatology of myth and cult has been superseded by an earthly system of social control. In the three-tiered prison, Plato has established a this-worldly afterlife, where some souls are disciplined (physically, in the jail), others are admonished or dialectically cross-examined (intellectually), and still others are deemed untreatable and left chained in an earthly Tartarus. In the city of the Laws, the state guarantees the distribution of just deserts that religion, and even Plato himself, had once only promised for the next life. This system is precisely calibrated to reflect the Platonic hierarchy of values, correcting not only the tyrannies of pleasure and emotion, but also even the faulty logic

152 In order to understand the extremity of this punishment, it is important to identify exactly who these “beastly,” unreasonable, devious criminals are. The words used to describe their activities, including “beguile” and “charm the soul” are rather rare, and hint at other, more precise meanings. “Beguiling” (goēteuō) refers, in the Republic (412- 13), to the sort of teaching that can corrupt potential guardians. More specifically, it’s the sophist (Sophist 235c), who uses this technique to confuse his audience (and students) about the way things are, and about what wisdom is. In a similar vein, the word for “charming the soul” is used by Plato only to refer to the enchanting aim of rhetoric (and, in the possibly spurious Minos, to the deceptive art of tragedy). These are the people in the grips of the worst sort of ignorance, the sophists, tyrants, and demagogues who have served as the dialectical foil of the philosopher throughout Plato’s oeuvre. They are all the characters who were most unwilling to learn.

153 The connection between the rational state of the soul and the form of punishment that can be applied to it is treated at length in the discussion of moral psychology below.

66 and dangerous reasoning of sophists like Thrasymachus and Callicles, or tyrants like Critias.154

Any “honest” criminal who can be saved will be saved, and anyone else will be “incapacitated” until death as a warning to would-be wrongdoers.

4. The Nocturnal Council

In the eschatological myths written by Plato, the sophists rot in hell, turn into animals, or suffer another such punishment, and those “practicing philosophy correctly” are given an equivalent reward. The souls of philosophers fall out of circulation, go to the Isles of the Blessed, or find eternal rest at some other topographical remove. If the prison system allows for the damnation of the wicked, does it allow for the elevation of the philosophical?

The rehabilitation of some atheists directly into the political elite is suggested, if not demanded, by the close relationship between the sōphronistērion and the city’s ruling body, the

Nocturnal Council. The council, introduced in the legislation on the prison, is not described until the very end of the Laws. In a parallel to the final myth of the Republic, the Council is identified as “the third fate” (Atropos, the “savior”, cf. Rep. 620e), responsible for the salvation of the bodies, souls, and laws of the city. It is composed of retired officials, as well as those “of the young men” who are “by nature and training” suitable as apprentices. The chief mission of the council is “setting the aim” of the state – that is, making sure the laws are directed towards the proper object, virtue. The Council is particularly concerned with providing knowledge, punishment, and rebuke (964bc, mapping on neatly to the role of the prisons).

The type of education appropriate for the members of the council is sophisticated philosophical dialectic (965b). This includes knowledge “concerning the gods…to know both

154 There is some evidence that Plato has a fragment attributed to the anti-democrat Critias in mind in his description of the atheistic doctrine. See (Sedley 2013).

67 that they exist, and what power they clearly have” (966c1-3). Gaining the knowledge necessary to become eligible for membership on the council will require laboring over all known proofs about the existence of god – a task that will require a long, intimate instruction – of uncertain duration (968c). These are the very skills that would have to be evident in those released from the prison, the rehabilitated “honest” atheists. The junior members of the Council “are educated on the acropolis” (969c1), a site occupied by only three temples, the Council, and the sōphronistērion. It may not be too much to suggest that given the known propensity of bright young people for atheism, one institution may do much of its recruitment from the other. The relationship between the prison of the “just” atheists and the Nocturnal Council thus presents a sort of alternate Socratic history, suggesting that if Socrates were born into Magnesia, he would surely end up as one of its rulers, though perhaps after a stint in prison.155

Plato’s proposal for the prison takes up a little more than two pages of Greek text. Placing it, as we have, against the background of incarceration as it functioned in the Athens of Plato’s time allows us to see the exceptionality of such a well-differentiated, rationally structured mode of punishment in the context of the classical Greek city. It also suggests that Plato viewed incarceration not as a phenomenon tied only to the context of public debt, but as a technique worthy of examination and elucidation. To understand more fully why Plato took up the prison as a major form of punishment, we must move beyond the building’s façade (or three façades), and try to reconstruct how Plato thought the prison would punish those locked within it. To do

155 It is tempting to suggest that some of the Socratic resonances throughout the text (and especially in book ten) may be explained in this connection. I am not the first to makes this suggestion (see (Friedländer 1969), p. 440, and (C. J. Rowe 2003)), but the question of Socrates’ place on the Nocturnal Council (as one of those “divine people” who spring up even in disordered states like Athens, 950d) must be taken up in parallel with the way in which Book X mirrors and does not mirror the trial of Socrates in Athens.

68 that, we must begin where Plato himself begins, with an investigation of what wrongdoing is, and what should be done to correct it.

II. Punishment as a Paradox

The prison appears only at what is widely agreed to be the end of Plato’s career as a writer. The seeds of incarceration as a form of punishment, however, are scattered throughout the set of interconnected premises and conclusions often referred to as Plato’s theory of punishment and treated across a number of dialogues from the Apology to the Laws. This “theory” has been the subject of a great deal of scholarly interest. In this section of the chapter, one particular element of these arguments about punishment is examined in detail – how it can be possible to punish in a way that improves (is better for) the one being punished. Much of the scholarly discussion has been devoted to determining whether Plato’s deliberately provocative thesis about punishment and improvement is valid. While this chapter is agnostic about the soundness of

Plato’s reasoning, it hopes to show that Plato saw quite clearly that novel arguments about why and how to punish led to a need for novel arguments about the means of punishment. Plato’s discussion of punishment makes possible his conception of the prison.

1. “It is better to be punished than to go unpunished”

Every time the topic is raised in Plato’s corpus, Socrates (or whichever character has taken the lead in the dialectic)156 endorses the future-directed approach to punishment that

Chapter One identified with Protagoras and his school. The central question of punishment must be how to look toward the future – making things better than they were before. This situates

156 Plato never speaks in propria persona, but this chapter will not take up the important interpretive questions of the distance between the author and his characters.

69 punishment in some sort of family relation to education as a mode of human improvement.

Accordingly, in the Apology, Socrates makes a distinction between crimes done unwillingly

(akōn) and those deserving of punishment. Unwilled crimes should not lead to court, rather, someone should “teach and chastise” (26a3) the wrongdoer. Wrongs done unwillingly, Socrates implies, are also done unwittingly (and vice versa).157

In the Gorgias, the site of Plato’s most intense engagement with the political ideologies of democratic Athens, Socrates makes the reformative/educational theory of punishment indelibly his own.158 In a series of nested paradoxes, he pushes the idea of future-directed punishment to its conceptual limit, and arrives at an audacious picture of what punishment should look like. In the dramatic context of the dialogue, Socrates is arguing over the power of rhetoric with two interested interlocutors – the sophist Gorgias, who has just performed one of his famous oratorical set-pieces in front of a public audience, and a younger colleague, Polus.

Polus is eager to defend Gorgias’ claim that rhetoric teaches how to “rule over others in one’s own city” (452d6-7). Polus further explains that this means “…to do whatever thing seems right to one, and to kill and exile and do all things according to one’s whim [doxa]” (466b4, 469c67, cf. 466b11-c1). Politics, in Polus’ view, can be boiled down to who gets to punish whom and how.

Socrates challenges this position with two related, and paradoxical, arguments. The first is that committing injustice (such as killing or exiling someone for the wrong reasons) is worse

157 It is not clear that any crimes actually deserve punishment – this hints at the famous Socratic dictum that no one willingly does wrong.

158 For general investigations of the political theory of the Gorgias, see (Tarnopolsky 2010) and (Euben 1994), and, for a Straussian interpretation, (Stauffer 2006).

70 than suffering it (e.g. being killed or exiled wrongly).159 The second, related, argument, is that being punished justly is better than punishing unjustly – and, even more essentially, that being punished means being improved in some way. Here is the gist of Socrates’ second argument:

1. Undergoing justice (dikēn didonai) and being disciplined justly (dikaiōs

kolazesthai)160 are the same thing. (476a)

2. Just things are fine things. (476b)

3. Whatever way something acts upon something else, the thing acted upon undergoes

an action in that way.161 (476d)

4. He who disciplines correctly, disciplines justly and therefore acts justly. (476de)

5. By 3 and 4, the person who is disciplined is acted upon justly. (476e)

6. If disciplined justly, then finely (by 2). (476e)

7. If fine things, then either pleasurable or good things (are being done to him). (477a,

cf. 474e)

8. But not pleasurable (assumed)

\ 9. The one who is punished undergoes good things/is benefited (477a2-3).

159 For the debate over these arguments, include whether and how they are fallacious, see inter alia (Vlastos 1967), (T. Irwin 1979) ad loc., (Santas 1979) Ch. 8, (Mackenzie 1981) pp. 241-5, (McKim 1988), (Berman 1991), (Weiss 2006), pp. 79-119 and, most recently (Sermamoglou-Soulmaidi 2017). My interpretation is closest to that of Weiss.

160 I am translating as “disciplines” what can also be translated as “corrects” to avoid confusion over “corrects correctly”.

161 So if something burns hot, a thing is burnt hotly. If something cuts painfully, a thing is painfully cut. This is called by Dodds “the modalities of correlates” (Dodds 1959) ad loc.

71 Here we have the skeleton of a theory of punishment – punishment is a subset of the genus

“human improvement” (the argument is apparently silent about the connection between the improvement of punishment and the improvement of education).

Many readers have noticed an apparently glaring slip in this argument. The move from the agent justly punishing (4) to the patient acknowledging that his punishment is fine (6) seems to be fallacious.162 Why should the criminal think that his punishment is either just or fine (kalos, also “fair”)? What may seem like a logical flaw in Socrates’ position requires bringing to the fore some assumed characteristics of the democratic culture of punishment explored in the first chapter.

According to the Protagorean/Periclean picture of democratic life briefly elucidated in

Chapter One, political matters relate to universal human characteristics, and therefore every person has a share in the art of politics.163 This is not, according to Protagoras, because political virtues are natural or automatic (ou phusei…oud’ apo tou automatou), but rather because cities continually (re)produce the idea of justice and sense of shame that makes communal life possible.164 A person who has been adequately educated by his city will necessarily identify with the values of that city, and if he does not identify with the values of the city (for instance, that it’s

162 (Mackenzie 1981), pp. 241ff.

163 For Pericles, see Thucydides, History 2.37. Protagoras adds another proof (323ac) – that no one would ever admit to being unjust or shameless, because everyone is presumed to have a modicum of each virtue (to deny that one is just is, in a sense, to deny one’s own humanity).

164 Virtue is both a condition of political life and a product of it, a product available to all. Compare the view attributed to Protagoras at Theatetus 167c: “…whatever practices seem just and laudable to each city, are so for that city as long as it holds them.” Kerferd’s translation ((Kerferd 1953), p. 45). Pace (Euben 1997) this does not mean that Protagorean relativism equalizes the justice of a tyranny and the justice of a democracy. The anti-tyrannical perspective is built in to the structure of the Promethean myth, and the perspectivalism of Protagoras is an egalitarian epistemic stance rather than a culturally relativistic one (see especially (Schiappa 1991)). The euboulia that Protagoras values is not an oligarchic or tyrannical value in the 5th century ((Woodruff 2013)). One suspects Euben of assimilating Protagoras to some forms of post-modern relativism (he cites Heidegger’s interpretation of Protagoras in “The Age of the World Picture”).

72 fair to be punished justly), then he was not adequately educated, and the solution is to educate him.

The assertion that if the agent punishes justly the patient will agree to his punishment should thus be understood as a psychological claim about how people in a society tend to agree with the general view of how things are – especially in the context of a tight-knit civic culture.165

The distinction good for him as opposed to good for others does not occur to such a person in such a setting. Here, the very character and situation of Polus is meant to help the argument along. This young man is deeply concerned with questions of reputation, such as whether orators are “thought to be a mean thing [phauloi nomizesthai]” in the city (466a10). He is still a student of the Protagorean/democratic civic education system (and a participant in a so-called “shame- culture”).166 Polus is unwilling to take the perspective of the individual against the regard and gaze of the political community. This piece of Socrates’ argument is particularly designed to wound such an opponent.167 If Polus agrees that the opinion of the city matters, then he should agree that what the city deems just and good truly is so, and that even the criminal should adopt the view of the political whole.

Socrates should also be understood as taking a certain type of future-directed argument about punishment to its logical extreme. He is suggesting that punishment, as a thing that the city deems is good, should not only be shameful for the one being punished, but even good for

165 I take this to be what (Weiss 2006) is getting at, p. 94n56. This shared sense of value among citizens has been a fata morgana for political theorists from Plato to Rousseau.

166 See below, Chapter 3.

167 The particular exploitation of Polus’ shame is noted by (Kahn 1983), (McKim 1988), and (Weiss 2006) among others (see (Tarnopolsky 2010) p. 34n.23 for a more extensive bibliography of shame and the dramatic structure of the dialogue), and since then, (Jenks 2012)

73 him.168 This is another reason for the criminal to agree with his own punishment, if he’s a well- adjusted citizen. Whether one accepts the analogy of punishment as education proposed by

Protagoras, or the less contentious utilitarian future directed arguments visible in Demosthenes and other orators, this extrapolation is not unreasonable. Plato is exploiting the paradoxical tension between a theory of punishment that is sound at each step and yet defies all common sense. It is this tension that drives the argument in the Gorgias onwards.

2. The means of punishment (I)

The next step demanded by Socrates’ argument is clear – how can punishment possibly improve (“be good for”) someone who undergoes it? All existing forms of punishment, in

Socrates’ time and our own, seem only to make those who undergo them worse in some way, and after all, to this point the interlocutors have discussed only the common forms of Athenian punishment, death, confiscation of property, and exile.169 Socrates explains how punishment works by turning to a metaphor that appeared briefly in Protagoras’ speech, but will come to have pride of place in Plato’s discussions of punishment. Medicine, he explained earlier in the dialogue, is the corrective art of the body, the skill that removes “corruption” to restore health

(465c). The soul, or whatever one calls the organ of human behavior, is also subject to corruptions and infirmities – states which are called “injustice” and “being dissolute” (literally

“lack of discipline”, akolasia, 477e). By analogy with medicine, there must be a skill that

168 In the background is an assumption that the city functions for the benefit of its citizens. This is part of a broader shift in Plato from the state acting as an intermediary between the conflicts of citizens to the state taking on the interests of the citizens as an impartial authority. As Danielle Allen pointed out to me, Plato is scrupulous in his use of the idiom dikēn didonai (“giving” justice), rather than the equally common dikēn labein (“taking” justice). Plato may be trying to nudge the language away from the zero-sum timē economy of honor taken and returned by punishment and towards a model where citizens are accountable to the state.

169 (Dodds 1959) accuses Plato of confusing an “is” (punishment as an institution) with an “ought” (what should happen to criminals). (Mackenzie 1981) p. 222ff calls this “institution begging”. (T. Irwin 1979) ad loc. raises a similar set of questions over the technique of punishing.

74 removes injustice and cures dissolution. This skill, Socrates gets Polus to admit, is a sort of justice (dikaiosunē tis), administered by judges (dikastai, 478a5).170

According to Socrates, punishment can be re-described as removing corruption in the soul, or, equivalently, moderating behavior by providing a treatment (hiatrikē) against corruption. This process of benefitting the soul through discipline (kolasis, correction, punishment) is the purview of the state legal apparatus (or anyone else who claims to administer justice).171 The conceptual delineation of crime and punishment may still seem an unsatisfactory solution to how punishment can act on the dysfunctional soul through the usual methods of corporal and monetary sentences. One clue as to Socrates’ intent here may come through the description of the unjust man who is improved by becoming more just, “the one who is chastised and reproved [houtos d’ ēn ho nouthetoumenos te kai epiplēttomenos]” (478e6-7).172 This language suggests verbal instruction of the sort Socrates referenced in his own speech in the

Apology. Here, Socrates seems to have taken the Protagorean approach to its own logical conclusion – if punishment is part of the same family as education, maybe its techniques should be the same techniques that are used in teaching.173 Perhaps human improvement is in fact a genus with one species – punishment just is education, properly construed.

170(C. Rowe 2007a), p. 148 points out that this “sort of” is a hedge by Socrates, perhaps against fully endorsing the contemporary institutions of criminal justice.

171 Though, as noted above, Socrates’ language is weighted towards a non-adversarial notion of administering justice.

172 The word I have translated “reproved” usually refers to verbal correction (LSJ s.v.), see (Benardete 1991) p. 348. The word I have translated “chastised” (nouthetēsis) appeared in Protagoras’ theory of reformative punishment discussed in Chapter One.

173 A large section of Protagoras’ great speech seems to have been explicitly devoted to education. See the explanation of children’s education as political education at Prot. 325c5-326c2 and compare to fragment DK 80 B4.

75 This metaphorical reframing of punishment only sharpens the worry that the actual punishments available in Athenian life – whippings (for slaves), fines, and exile – cannot perform the soul-crafting that Socrates implies they must. Yet Socrates seems to imply that even these brutish methods will do the trick of improving a criminal “if his unjust behavior deserves

[them]” (480d1). The grammatical condition of this whipping and chaining suggests some reticence on Socrates’ part. If an unjust act requires flogging, beating etc. then the criminal should present himself to be whipped. Socrates may not think that this condition is ever fulfilled, and, as we have seen, in the service of advancing the dialectic, he is more than willing to say things that seem absurd.174 By the conclusion of the exchange with Polus, Socrates supposes himself to have shown that well-educated citizens of a polity will, thanks to their susceptibility to social pressure, be open to non-corporal, non-coercive forms of punishment. Shame, and empathy with communal values, should inspire bad people to become better.

3. The means of punishment (II).

If the conclusions reached from the conversation with Polus were sufficient, the penal system should be redesigned as a shame-inculcation system. As it happens, at least one person listening to the argument, the aspiring politician Callicles, does not think shame as powerful a motivator as Polus did. He seems utterly immune to the earlier arguments about punishment as a benefit deemed good by the crowd.

174 For a treatment of this problem at length, see (Shaw 2015). Even if the statement is meant seriously, its dialectical role is clearly to heighten the contradiction between the strange (atopa, 480e) things that Socrates is saying and normal penal practices. If Socrates were to limit his argument to some category called Socratic punishing that obviously improved the soul directly (“S-punishing”), then the practical politicians he is debating would ignore him. It is only by making the argument in terms that his interlocutors understand that Socrates can move the dialectic forward. Later evidence in the dialogue suggests that just punishment will in fact be a form of “S- punishing” (see (C. Rowe 2007a), pp. 151-2).

76 Although a citizen of Athens, Callicles does not feel constrained by the collective values and moral standards of the commons. He claims that power accrues to the daring and the strong.

Callicles argues that such power – control over politics and punishment itself, is only a means to a more essential end – pleasure – and that pleasure transcends shame, injustice, and all other political virtues. Happiness thus means feeding one’s desires (epithumiai) as much as possible and being entirely undisciplined (and unpunished, mē kolazein, 491e-492a1).

Political power is good in that it allows one to achieve the greatest capacity for pleasures and the greatest capability to indulge them.175 Callicles is perfectly comfortable with the language of punishment as discipline, used by both Socrates, and, it seems, hoi polloi (491d11-

12, 492a5-6), but he interprets it to mean a disciplining of pleasures and appetites. Polus thought politics was defined by the control of punishment, and Callicles agrees, insofar as threat of punishment is the greatest impediment to the pursuit of pleasure. The many, Callicles scoffs, lack the means to satisfy their urges, and so they decree laws and forge judicial restraints for the strong and able out of a sort of ressentiment.

If Callicles’ wanton behavior is the consequence of acting out urges and desires motivated by pleasure, then the folk psychology shared by Callicles and the demos actually suggests a pathway for punishment.176 The discipline and correction that Socrates claims can

175 If we suspect Plato of having constructed a straw-man whose personal peccadilloes are precisely those most vulnerable to Socratic punishment (kolasis), the evidence from Aristophanes (especially the Knights) suggests Callicles is more representative in his attitudes than we might have thought. Cf. Eq. ll. 333, 395-6, and especially 714-18.

176 Plato’s characterization of Callicles is filled with ironies - he aspires to be a democratic politician but has nothing but disdain for the masses. He claims to be a lion among sheep but ultimately shares the opinions of the many about good (pleasures), and ends up being more like the people than he might want to admit (513c). This double portrait of Callicles and the mob is also, of course, meant to implicate the values of the average citizen, who probably would turn into a Callicles if he had the means. See (Kamtekar 2005) for an extensive examination of the meaning of Callicles’ “assimilation” to the demos.

77 improve the soul should focus on counteracting the draw of pleasure and getting unruly desires under control.177 Indeed, Socrates uses the language of “structure and order” (taxis kai kosmos) to define “law and what is lawful” to Callicles (504c2, 504d1-2). By analogy with medical patients, whose appetites and intakes are closely monitored and controlled by the doctor, “it is necessary to restrain [the soul] from its appetites and not leave it to do anything except that from which it will become better” (505b2-4). Punishing (disciplining, kolasis) in its purest form is nothing other than keeping the soul away from that which it desires.

The reader might expect that the form of punishment best suited to this will be a sort of ascetic regime – isolation from harmful stimuli and watchful regimentation of life’s necessities.

Rather than elucidating any structure that might hold and reform the criminal however, Socrates instead suggests that he has a very specific technique in mind. Socrates returns to the same idea of verbal rebuke that he introduced against Polus. Callicles “won’t undergo improving, and [with it] undergoing the thing which the discussion is about, being disciplined [kolazomenos]” (505c3-

4).

Although often dismissed as an ironic aside,178 this line may in fact be Socrates’ clearest statement on the proper technique of punishment.179 Two paradoxes become one as desirability

177 Much Anglophone scholarship on the Gorgias has focused on its status as “transitional”, from a Socrates who believes that humans only do wrong unwittingly towards the beginning of the dialogue to one who believes that our best intentions can be overcome by strong desire at the end (for accounts like this, see (T. Irwin 1979) and (Vlastos 1991), Ch. 2). This is not the place to rehash the debates on this topic between (J. M. Cooper 1999), pp. 29-75, (Carone 2004), (C. Rowe 2007b) and others, but for the purposes of this chapter the fact that Socrates seems to suggest that the solution to overwhelming desires is more knowledge suggests that his position entails a connection between power over one’s desires and one’s knowledge of ends (judgements about the good). As (Moss 2007) points out, pleasure is uniquely able to pervert our knowledge of the good – it seems Socrates also believes that correct knowledge of the good can reestablish a person’s control over desires (and pleasures).

178 See (Mackenzie 1981), p. 181.

179 A possibility only recently explored by the scholarly literature. The first contemporary scholar to make the connection between dialectic and punishment seems to have been (Cholbi 2002). Both (Sedley 2009) and (Edmonds 2012) use this line to case light on the eschatological myth (on which see more below). (Shaw 2015) gives the fullest account of discursive punishment throughout the dialogue. (Kamtekar 2016) traces the the way myths of punishment

78 of being punished over punishing others merges with Socrates’ preference (stated at 458ab) for being refuted rather than refuting. But can beating someone in an argument really be the paradigmatic case of punishment? Leaving aside the temptation of incredulity, Socrates’ argument has at least two internal problems. One is the presumption that punishment must be painful (as was implied in the argument against Polus). The metaphors of beating and lashing, however suggest that losing an argument is painful.180 In addition, the heavy emphasis placed on shame as both an outcome of arguments and the crucial medium of social control in polis life provides a possible source of pain.181 The second difficulty is the role of “conventional” punishment in the Socratic scheme. When compared with the possibility of convincing a wrongdoer that he did wrong and showing him what would be better, something like whipping seems not only crude, but even antithetical to Socrates’ argument. 182 Nowhere does Socrates suggest that action on the body can improve the soul – in fact, he goes to great pain to separate the sorts of things that apply to the one from those that affect the other. Bodily punishments do not purge the soul of injustice as much as merely teach the criminal not to get caught.183

reflect “dialetically derived claims” throughout a much wider swath of Plato’s work, including the Euthyphro, Phaedo, and Republic . As Shaw notes, ((Shaw 2015), pp. 75-76) there is a long-running division in the literature as to whether Socrates endorses corporal punishment, between Penner, (e.g. (Penner 1992)) and Rowe (see (C. Rowe 2007b), who believe he does not, and (N. D. Smith 2002) and (Brickhouse and Smith 2010), Ch. 4, which suggest such punishment can be endorsed by Socrates. On the whole, the evidence examined in this chapter suggests that while Socrates might not endorse corporal punishments, Plato, or at least the Plato of the Laws, certainly does. The crucial question is corporal punishment for what type of criminal?

180 478e, cf. Euthydemus 303a, where the argument “strikes a blow.”

181 In other dialogues, however, Plato’s Socrates seems to envision education as punishment without pain, see (Kamtekar 2016) and contrast Apology 26a, where punishment is necessary when education has failed.

182 Though some have been attracted by the idea that the pain of beating, exile, and so on might be just the thing to “keep the soul away from its appetites” ((Brickhouse and Smith 2010) Ch. 4, which does not believe dialectic is a punishment, and (Sedley 2009) who does).

183 (Shaw 2015), pp. 88-90 has provided a neat solution to this problem by confirming that while non-dialectical punishments are admitted by Socrates into the toolkit of the “true politicians” who persuade and compel the citizens to become better (517d), Socrates’ notion of “compulsion” seems to consist of only of a limited set of “conventional punishments”. These include gift-giving and property confiscation (504d, the material version of “praise and blame”

79 Socrates wants to insist on “the unforced force of the better argument” as the essence of punishment. And indeed, this exchange ultimately results in Callicles admitting that pleasure, which is pursued by bold, cunning people and soft, cowardly people alike, cannot be a sufficient end by which to judge the good in human life.184 Has Callicles been sufficiently punished, then?

Has his soul been put back in order? While he admits that something in Socrates’ arguments seems to be correct, Callicles feels “what the many [hoi polloi] experience” in interacting with

Socrates – he is not totally convinced (513c4). Perhaps, had Socrates the world enough and time, he could show anyone the truth of the idea that doing injustice is worse than suffering it and being justly disciplined is better than escaping punishment (cf. 527bc), but it does not seem likely that Callicles, or anyone else, will stick around voluntarily to become better through deliberation.

Despite having failed to win over Callicles, Plato has moved his argument forward.

Shame as a mode of social control was descriptively accurate – it fit with a broadly civic- democratic theory of moral motivation. While was able to appeal to the psychological plausibility of reformative punishment in the context of Athenian shame culture, it could not

that Socrates associates with value formation at 483b) and execution and exile. None of these conventional forms of punishment is corporal (execution is the destruction of the incurable soul, not harm to the body) and each has a clear logic distancing the punished from the means to pursue their appetites, especially if we consider wealth and position as ethically indifferent things that can enable good or bad behavior. These punishments will be used in concert with dialectic, which challenges people on the unjust ends they have (ends which it seems safe to say Socrates thinks are held in the soul). Socrates in the Gorgias is giving a twofold scheme for improving citizens (that is to say, for punishing them). The politician will restrict their access to worldly goods (including access to the city itself) and will use a set of educational techniques (more or less like Socratic dialectic) to reorient ends from pleasure to order. This two-fold division of punishment has similarities to the more sophisticated schema identifiable in the Sophist (228d-230b) and Laws (859e-864c) and there is much to recommend it, but it is more implied than stated in the Gorgias.

184 497d8-499b3. See (Dodds 1959) ad loc. The multiple examinations of Callicles all focus on his inability (or refusal) to distinguish the good from pleasure. This is the meaning of that heavily ironic response of Socrates after Callicles admits that he is not totally convinced. “It is the love of the People...existing in your soul that is opposed to me” (513c4-8). This complicated relationship between politician and city suggests that Plato thinks the arguments which convince Callicles can, ultimately, be used on a larger scale – a project that, we will argue, he finally attempted in the Laws. For Callicles’ philosophical similarity to demotic forms of reasoning, see (Kamtekar 2005).

80 justify itself to a skeptic like Callicles to who refused to be shamed. Through his back and forth with Callicles, Socrates reveals the mechanism behind not only shame but any other effective form of punishment – the ordering and structuring of the criminal’s soul (with special attention to appetites and passions). Socrates even hints at the method by which changes can be brought about in the soul – the correct prosecution of philosophical examination (elenchus).

By raising the possibility of dialectic as the paradigmatic case of true punishment, however, Plato raises as many problems as he has solved. As the inconclusive nature of the exchange with Callicles demonstrates, it is hard to pin down an interlocutor without some external form of coercion. Conversation as the essential form of punishment remains as strange an idea now as it must have seemed then.

III. The Myth of the Prison 1. The Gorgias myth

By the end of the Gorgias a conceptually consistent, if undeniably radical, philosophy of punishment has begun to emerge from Socrates’ arguments. Socrates adopts the

Athenian/democratic idea that punishment is an extension of the processes of social and political identity formation that motivate education and other forms of cultural literacy (paideia).185

Unlike other expressions of punishment as paideia, however, the Socratic account gives a clear account of how and why punishment works. For some people (like the dialogue’s Polus), the inducement of shame – a crucial precondition for normative life in the classical Greek city – will be enough correct their errors. For others, who have rejected the traditional social values, an attempt must be made to realign their psychic state through extended argument (dialectic). If

185 The classic study of this concept is (Jaeger 1938). Protagoras is treated in the first volume, Plato in the second.

81 crime is based in cognitive error, then intellectual correction is the most direct, indeed perhaps the only truly justifiable, form of punishment.

Socrates has gone some way towards suggesting how dialectic reorders the soul – it can show how ends the criminal thought were good, like pleasure, are not, and thereby allows the wrongdoer to go forth and sin no more. By rearranging the intentions and priorities of the criminal, dialectic disciplines the soul, replacing disorder with stability. Even this fleshed-out theory of punishment as moral education has some obviously tendentious elements. The idea that criminal behavior can be changed entirely through a “talking cure” is nearly as difficult for modern readers as it must have been for ancient ones. Callicles’ doubtful responses at the end of his conversation with Socrates suggest that his rehabilitation is less than complete, and a more fully articulated technique of punishment is necessary to make the case that philosophy can combat crime.

This incomplete argument about the form and technique of punishment may help to understand one of the most outstanding literary features of the Gorgias, the “eschatological myth” that takes up its final pages.186 In the myth, which Socrates insists is really an argument

(logos, 523a2), certain elements of poetry and mystery religion are used to tell a story of penal reform in the afterlife. In the old days, the story goes, Cronus, as arbiter of justice, sorted people for reward or punishment in the afterlife according to their outward trappings. This allowed the wealthy and successful to escape punishment and move on to the Isle of the Blessed.187 Cronus’

186 The literature on Plato’s use of myth is extensive, and disagreements continue as to whether the myths are philosophically essential or perhaps mere restatements of earlier arguments. See (Annas 1982), (Brisson 1998), and the varied interpretive strategies found in (Partenie 2009) and (Collobert, Destrée, and Gonzalez 2012). See especially (Kamtekar 2016), whose approach agrees substantially with our own.

187 This account is already an implicit critique of its sources – in Hesiod “the age of Cronus” is a golden age, and in Pindar (Ol. 2.53), the ability of “wealth fitted out with excellence” to ensure happiness in the afterlife is taken to be a just and consoling fact of life.

82 successor, Zeus, however, appoints judges who “with only [their souls] should study only the soul of each person immediately upon his death” (523e3-4).188 The errors and ugliness in the soul that led to bad behavior in life, leave their mark on the soul in death – what Socrates calls the whip marks and scars of injustice – all of which will be readily apparent to the judge. This image of true punishment, fair punishment, as one soul examining another directly seems modeled on

Socrates’ own brand of dialectical examination (elenchus).189

Perhaps the most important element in the myth is its stripping away of the corporeal and political context for punishment, to leave a “philosophically pure” exemplum – the myth as a thought experiment. Plato shows that, without bodies, without juries, without mobs and demagogues, it is easy to imagine a system where “those punished rightly by another, either become better and improve, or become examples to the others” (525b3-4).190 The souls of the judged undergo some sort of “pain and suffering” before being allowed to proceed to the Isle of the Blessed. The precise nature of the process is left unclear (cf. 525bc, 526bc), but, as the souls are disembodied, these must be cognitive pains similar to those suffered by Polus and Callicles above – being shamed, being shown to be wrong, and the like.

How are we to take this myth? Is it a story of consolation, that the last in this life shall be the first in the next (and vice versa, cf. 526d-527a)? Such a reading was clearly attractive to many readers throughout history, but neglects the philosophical problem that the myth is

188 Zeyl’s translation in (Plato 1997), emended.

189 Both (Edmonds 2012), pp. 183-5 and (Sedley 2009) pp. 63-68 give excellent accounts of the myth as dialectical scenario.

190 The word for punishment here is timaō, which I have been translating as “penalize”. Here, it clearly means punish. Plato’s switch to retributive language in the myth goes unexplained – perhaps it is an effort to reclaim all the words relating to punishment in the Athenian lexicon.

83 designed to address. More enticing are recent suggestions that the myth be taken in the spirit of

Socrates’ musing “who knows if being alive is really being dead, and being dead being alive?”

(492e10-11) – that is to say, perhaps myths told of the afterlife should be taken as metaphors for understanding correct behavior in this life.191 According to this approach, the myth is really about the “trial of living as a good man”, which Socrates says, “stands over and against all other trials in this life [enthade]” (526e3-4). This reading presents the lessons of the myth in a rather different light. Foremost is the priority of the soul and treating the soul in the process of punishment (a point contiguous with the earlier lessons of the dialogue). Next, however, is the myth’s vision of the structure that might make “true punishment” possible – the arrangement that could cause someone like Callicles to submit to the extended treatment that would fully correct him.

Here, Plato’s description of the geography of the afterlife may contain an overlooked clue towards the meaning of the myth. As in some mytho-poetic sources, Plato posits two possible destinations for souls, the Isle of the Blessed and “Hades” or “Tartarus” – the pit. Plato calls the latter of these “the prison [desmōtērion] of retribution [tisis] and justice [dikē]”. The idea of the afterlife as a sort of prison is almost a cliché in modern thought, but the image is unusual in early

Greek mythography.192 In most descriptions, the underworld is a collection of physical locations, deep pits, clefts, meadows, even islands. The prison, on the other hand is a civic institution, a concept not often used to describe the cosmic order.

191 See (Sedley 2009) p. 53.

192 Though Prometheus is often depicted in chains, and the word for the “pit” of Tartarus was used by the Athenians to describe a form of capital punishment with which, as Plato notes at 516d9, they threatened Militiades. For the varied views of the afterlife then current in Athens, see (Bremmer 2002) and (Dover 1974), pp. 261-267.

84 Plato, in his myth, is building on the concept of order and ordering that he introduced earlier to describe work done on the soul. If Socratic soul-treatment fails to complete the task of ordering on the individual level, perhaps the solution lies at a higher level of social organization, with an institution designed to do the sort of work on recalcitrant souls that the judges of the myth perform on the scarred and scabby shades of the dead. The Stoics later taught that this higher level is the universe itself, which “the wise say…is called a 'world-order' [kosmos]…not a

'disorder' or 'without discipline' [akolasia]” (507e6-508a4).193 Somehow, everything works out in the end. But there is another interpretive option – to take seriously the image of the place of judgment as a civic institution. Perhaps the prison can do the work of the afterlife, and the myth of the afterlife is effectively describing a prison.

2. Punishment in other eschatological myths

If the myth of the Gorgias can be read as an allegory for the conditions necessary for true, fair punishment (including psychic investigation, punishment that improves, an institution that has coercive power over souls unwilling to be bettered), can similar lessons be gleaned from other Platonic myths? As it turns out, penological and carceral elements are not unique to the

Gorgias myth.194 One of the major themes of the myth that concludes the Phaedo (a dialogue that takes place entirely within the Athenian desmōtērion) is what precisely it might mean for the soul to separate from the body – how and why it may be possible to conceive of a disembodied

193 The full passage was clearly amenable to interpretation by Stoics and other Hellenistic Socratics: “The wise say, Callicles, that both the heaven and earth, gods and men are held by community and friendship, excellent order, temperance and justice. And this, the whole, is called a 'world-order' [kosmos] on account of these things, companion, not a 'disorder' or 'without discipline' [akolasia]” (507e6-508a4).

194 Plato closes two other dialogues (the Phaedo and Republic) with extensive eschatological myths and includes shorter myths about the soul and its progress in at least two more (the Phaedrus and the Meno). It is not possible to do justice to all the relevant similarities and differences between these myths in the current context. See (Saunders 1991), pp. 196-211.

85 soul. This is an exploration, in other words and images, of the idea in the Gorgias that souls in the afterlife are examined “naked.” A soul goes down to the underworld, says Socrates

“possessing nothing except for its education [paideia] and upbringing” (Phaedo 107d2-3). Even here, in a dialogue apparently removed from the questions of civic education and politics that motivated the Gorgias, the state of the soul is a consequence of the very issues that Socrates,

Gorgias, Polus and Callicles fought over – what it means to educate and be educated. What goes on the “underworld” is an extension, indeed, an outcome, of civic education.

The mechanisms for sorting the souls in the Phaedo are, it must be said different from the mythical judges of the Gorgias. Here the soul’s own character, and its past actions, determine whether it finds an easy way through the tortuous subterranean geography Socrates describes, or gets lost and wanders through a sort of purgatory (108ac). There is a judgement (113d3), and souls either pay the penalty (are punished) for their deeds in life or gain honor for them. Some souls are incurable, and some have a further stage of punishment, after which they must persuade other souls to receive them back into the society of shades. Pious souls are set free and fly from these regions “as if from a prison [desmōtērion]” (114c1) to return to the surface of the earth, where they are reincarnated. Good souls, that is to say, adequately educated ones, have no need of prison to make them better.

The general structure of Socratic punishment is readily identifiable in the prison/underworld of the Phaedo – souls are rehabilitated through punishments. After these punishments, the souls join other souls who led better lives than they did, suggesting that they themselves have “become better.” As with the Gorgias myth, at least two interpretive strategies are available to the reader. The first is to take the Pythagorean geography of the underworld at least in some measure seriously, as a sort “likely story” of how the reincarnation of immortal

86 souls theorized in the dialogue (e.g. At 78d and following) functions in the physical cosmos. The second is to focus on Socrates’ recommendation that this tale serve as an “incantation” and ask what lessons can be drawn from it.195 Aside from its considerable contribution to the

“consolation of philosophy” genre, the myth also highlights the social context of punishment.

Souls find their way (or don’t) based on the approbation or condemnation of their fellow souls

(107bc). A key criterion for when punishment has ended is whether a soul is ready to be readmitted to the company of better souls, and indeed, those who bypass punishment altogether are, it seems, readmitted into the company of living humans.

This adds a layer of complexity to the picture of what the institution of punishment must do that was absent from the Gorgias. In the Gorgias, the social context of punishment was present, but the idea that punishment exists in part to return the criminal to the society that punishes him was not. The finality of the “Isle of the Blessed” as a destination for adequately punished souls is therefore a less precise analogue for the relationship between the criminal and the society that punishes him than the metempsychosis of the Phaedo and, indeed, the Republic.

Without delving into the Myth of Er, the extravagantly complex and fantastical passage that concludes Plato’s masterwork, it is worth noting certain important continuities there with the

Gorgias and Phaedo. Here too, Plato is explicit about the ability of punishment to make people better (619d, where those who have undergone punishment make wiser choices than those who have not); and here too reincarnation is the crucial metaphor for expressing the iterative nature of punishment. A successful punishment does not fix the event of the past, it prepares the criminal for the future. It is worth pausing here to note that, as with Dante, his successor in mythographic

195 The presence of the word “incantation” (epōidos) is leitwort linking each of these myths. Plato seems to use the word to indicate something that bears repeating, regardless of its literal truth.

87 penology, Plato’s myths of punishment do not merely project the ordering of this world into the next. Rather, Plato manipulates the language of myth, and particularly myths of the afterlife, into a compelling picture of “true punishment”, as applicable to this life as it is to the next.

This brief excursus into Platonic myth suggests that even though Plato only rarely mentions the prison in connection with punishment throughout his dialogues, his preferred metaphorical and mythological modes of working through the question of punishment were closer to the image of the prison than might have been supposed. These myths, and the prison- metaphor operating behind them, serve two philosophical roles. As accounts of the soul stripped from the body, these myths allow Plato to use metaphorical language consonant with the different versions of moral psychology theorized in the various dialogues. Viewing the soul alone in its trials and tribulations, the reader is shown that the causes of crime were always present, though invisible, within the psyche of the wrongdoer; and by “personifying” the soul,

Plato makes the idea that cognitive change is the answer to criminal behavior seem less strange than it otherwise might. The second goal accomplished by these myths is the actualization (at least in images) of the proposition that punishment can, and must, improve the punished. Several mythical elements, most powerfully that of reincarnation, combine to suggest the possibility of returning to the social world after the process of punishment.196

The technique of mythmaking, however, comes with at least two serious drawbacks. The figurative nature of mythical language, while evocative and powerful, makes the mechanisms behind the concepts that are being elucidated unclear. Take, for example, the improvement of criminal souls. If the reading of the Gorgias presented above is accepted, the mechanism suggested by that myth could very plausibly be analogous to the sorts of dialectical exchanges

196 Cases where reincarnation results in rebirth in a lower state are explicitly linked to insufficient punishment.

88 depicted earlier in the dialogue. It is difficult, however, to see the same technique at work in the

Phaedo’s description of the purifications and penalties undergone by shades tossed about in the subterranean rivers of Cocytus and Pyriphlegethon or the Republic’s “pains, punishments, and sufferings” meted out over one thousand years beneath the earth.197

The second problem with the Platonic myths of punishment taken as a whole is the obvious fact that Plato is not wed to the accuracy or truth of any single myth and its details.

While there are certain continuities between the myths (the improvement of the punished, reincarnation, souls that carry evidence of their embodied life with them), the details of the myths are all entirely dependent on dialectical context. The Gorgias gives us a counterweight to the Pindaric mystery accounts beloved by elites in Sicily and Athens.198 The Phaedo’s myth is an involved topographic travelogue whose pseudo-Pythagorean details echo that school’s role in the dialogue.199 And the Myth of Er is the but one of the several myths that anchor the arguments of the Republic – its mathematical detail and mythological treatment of various characters echo specific themes of the work.200 The similarities suggest a set of important propositions concerning punishment, but the flexibility around the details suggest that while these

“enchanting stories” are something that should be believed,201 they do not actually explain the details of how true punishment works in the here and now. Plato was aware of these objections to the philosophical use of myth, and in one (often overlooked) mythic episode he made a concerted

197 For the aims and literary technique of the Myth of Er, see now (Keum 2017).

198 The connection between the myth and the world, if not the actual text, of Pindar’s second Olympian ode, is noted by (Dodds 1959), but is worthy of its own study.

199 See the discussion in (Gallop 1975).

200 See, for instance, (Halliwell 2007).

201 Cf. Rep. 621bc.

89 attempt to balance the vision of punishment evinced by myth with a more plausible depiction of how virtue effects the soul. This attenuated myth does not occur at the end of a dialogue, but rather in the middle of a particularly difficult and obscure section of the Laws, the very section of the Laws where the prison is introduced to Plato’s political thought – the treatment of atheism in

Book X.

3. From myth to prison

The bulk of tenth book of the Laws is, formally, a prologue to the laws governing the punishment of atheists.202 This passage, like the other prologues in the Laws, is meant to convince and educate the citizens of the city, with the hope of affecting behavior before punishment is necessary.203 It begins with a series of arguments against three different types of atheist – the same types of atheists who end up being imprisoned in the sōphronistērion and

Tartarus prisons. Before turning to the prison, the Athenian stranger attempts the stratagem familiar from the Gorgias, engaging with philosophical arguments against scientific atheists and logical and moral arguments against deists and advocates of the traditional religion of do ut des.

A turning point in the prologue is reached in a crucial passage at 903b, where “forcing by argument” (biazesthai...tois logois) against the deistic atheist gives way to “enchanting stories”

(epōidoi muthoi). This mention of charms and myth would seem to signal, as in the Gorgias,

Republic, and Phaedo, the beginning of an eschatological account that will complement, reaffirm, and complete the arguments that preceded it, confirming that the gods “supervise all

202 885b and following. There are three types of unbelief characterized by book ten: The first corresponds most closely to the modern meaning of the word; the second, deistic, professes a god who is not engagé; and the last describes belief in gods who can be won over by offerings and prayers – which it would not be wrong to identify with traditional Greek religious thought. This complex categorization is surely impressive given that it is unclear what it might mean to even speak of atheism as an actual phenomenon in the ancient world. See (Fahr 1969), and (Sedley 2013).

203 The legislative strategy of persuasive prologues will be treated at length in Chapter Three.

90 things...with wondrous ease” (903e-904a).204 This myth, however, clothes itself in the language of scientific causation.

The figure in charge of arranging the cosmic system, described variously as a “god,”

“king,” “craftsman” and “draughts-player,” bases his system on the properties of body and soul.

The god has contrived things such that, due to the way good or bad activity changes the quality of a soul, souls of a certain character (poion) will end up in the position best suited to encourage good and suppress evil in themselves and, one presumes, the whole (904a-c). This design is described as “best and easiest.” The Athenian goes on to clarify the principles behind this effortless contrivance. Due to soul's innate affinity for motion and causing change, souls can be relied upon to move “according to the order [taxis] and law of fate” (904c8). This “law” is the principle of “like to like.” If a soul does not change much for the better or worse, then it will remain in much the same area “of space” that it occupied. This is necessarily vague, but it seems to mean that the soul remains human, at the very least, and perhaps in the same station it was in its previous life. If the soul becomes more unjust, then it sinks deeper, into the regions said to be lower, and called by men Hades (904cd). The hedging about this so-called deep region, Hades, suggests that Plato means something else by the soul's descent to a lower region. Some have proposed this implies transmigration into a lower life form, such as occurs in the Timaeus, others think only the souls of moderate change are returned to bodies.205 In a parallel passage, the

“good” soul is said to rise to higher regions.

204 Eliding the notoriously tricky text in between. See (Mayhew 2008) pp.174-77 and (Saunders 1973).

205 For the former, see (Saunders 1991) p. 204, for the latter (Mayhew 2008) p. 178-80. The interpretation depends on how much of the Timaeus one wishes to read into Laws X, cf. (Saunders 1973).

91 Most striking here is the delicate balance reached between determinism, a system that appeals to the most “modern”, mechanistic impulses of the atheist interlocutors, and the insistence on the existence of consequences for choices that souls make during their lives. A soul's course is not determined, it can accrue great shares of virtue and vice over a lifetime, “on account of its own desire and becoming strengthened [in this tendency] through intercourse [with likeminded people]” (904d5). Yet, once it dies, its path to regions upper or lower is entirely automatic. Plato invokes Homer here, but his system is anything but Homeric. The principle of

“like to like,” stated explicitly at 904e8, is a physical law. The sores and bruises on the soul of the unjust person that were inspected by an underworld judge in the Gorgias have changed into a heaviness or lightness that sinks or lifts a soul automatically (905ab). The aspect of “judgment” has disappeared entirely, but the tale of the afterlife still has great hope for affecting behavior. In a version of the characteristic sentiment that accompanies the other eschatological myths, Plato’s

Athenian Stranger avers that “if someone doesn't know [about the afterlife] ...he will never form an account [logos] of life with respect to both happiness” and its opposite (905c2-4).

Despite its sophisticated lexicon, this “mechanistic eschatology” is no fitter to serve as a last defense against the atheism of sophistic scientists than any of the folk tales of vengeful spirits that Plato half-heartedly relates as a deterrent against homicide elsewhere in the Laws (cf.

870de, 872de). Perhaps most significantly, the myth’s theory of punishment is highly deficient from the perspective of a punishment that must always improve the one being punished. Plato’s eschatological myths, however seemingly outlandish, always incorporate the logic of reform.206

206 In addition, here (unlike every other Platonic myth from the Apology, through the Gorgias and the Republic, and in the Phaedo), no distinction is made between a “philosopher who has looked to his own business”, and someone who merely “participated in virtue through habit and without philosophy” Gorgias 526c, Rep. 619de (Grube trans. (Plato 1997)), cf. Phaedo 114e. See (Stalley 2009).

92 Whether the scourging by Minos in the Gorgias (525b) or the choice of life in the myth of Er

(Rep. 620d), there is always a mode by which the punished soul is made better by what goes on in the beyond. The rather forced mechanisms of cosmic punishment do not seem to reflect moral necessity. Once a soul sinks down, into the body of a lower animal, or simply to a lower cosmic region, what chance does it have of rising back up? The universe may work out as a sort of machine moving toward the good, but, as proponents of such a view knew long before Candide met Dr. Pangloss, mechanistic holism is morally unconvincing given the state of the world. The logic of deterministic science is at odds with the requirements of just punishment.207

The failure of this attempt at a “scientific myth” suggests that eschatology is simply not capable of furnishing a plausible and comprehensive picture of cosmic justice in the face of skepticism and atheism.208 A confirmation of this suspicion can be found from a striking passage: “It is necessary that the disciplining of these men here in their lifetime fall in no way short of that in Hades, as much as is possible” (881a8-b3). In the Laws, Plato says clearly what is only hinted at in other dialogues, that social and political institutions can carry out the role heretofore assigned to divine punishment. A political structure must deliver the sort of true improvement that Plato appealed to elsewhere using the tools of myth. The political structure in question will prove to be the prison system.

207 In a draft, Amos Espland also notices the failure of this myth to conform to Plato’s more general penological principles. His suggestion that the sorting out of souls may be good for the cosmos as a whole, if not for each of the parts individually, seems sound. Normally, Plato makes allowances for non-improvement in extreme cases (for deterrence), here the mechanization of the procedure seems to make non-improvement the rule rather than the exception. The failure of this “myth” to take into account the agent-specific distribution of punishment (and indeed to prefer the whole to the part, 903c) also points to its exceptionality (and, perhaps, its ultimately unsatisfactory character).

208 Interestingly, this myth of the cosmic craftsman, which has much in common with later Stoic doctrine, looks rather like the “cosmic” interpretation of the Gorgias myth offered above – a vision of punishment where everything works out on the level of a cosmic whole. The failure of this myths provides reason to suppose that the other interpretation – the “carceral” interpretation may carry some additional weight.

93 The goals of this chapter have been threefold – to introduce the prison as Plato conceived of it, to situate the prison within the theoretical framework of Plato’s philosophy of punishment, and to show how incarceration plays a major role in Plato’s conception of punishment in practice. In passages from the Gorgias through the Laws, Plato evinces constant dissatisfaction with contemporary techniques of punishment. In the Laws, he goes on to construct a prison system unlike any in existence in Athens (or any other ancient polity). Plato’s unease about traditional punishments, and even his innovative use of incarceration, may still not be enough to defuse the most cutting complaint against his reformative theory – that punishment cannot truly improve people (and therefore, it ought not be asked to do so).

This objection demands a clearer account of how Plato’s punishments, particularly the prison, accomplish the educative and rehabilitative mission that philosophy demands of them.209

Even in the Laws, the place where Plato is most creative in fitting punishments to crimes, he still makes ample use of the same old formulas (fines, executions, exile) that seem in conflict with his new penological standard. The final section of this chapter will attempt to answer these challenges by connecting the techniques of punishment to an element of Plato’s penology that has been in the background since the Gorgias and its exploration of Callicles’ disordered soul – the moral psychology of the criminal.210

209 (Mackenzie 1981) 1981, pp. 222, cf. (Saunders 1991) pp. 354-6, who thinks a solution to this challenge may be possible, but that Plato has not spelled it out.

210 Earlier attempts to answer the charges of “institution begging” in Plato’s theory of punishment largely avoided the Laws ((C. Rowe 2007b), (Shaw 2015)) and thus left Plato open to the charge that when he constructed his most detailed penal code, he abandoned penological innovation and had recourse to traditional punishments. (Saunders 1991), p. 186-187 provides an ingenious attempt to defend Plato’s use of corporal punishments by connecting the Laws to the physiological doctrines of the Timaeus. Saunders arguments are persuasive, but can be made stronger by an appeal to moral psychology.

94 The moral psychology of crime Rational Irrational Name Ignorance Passion Pleasure Cause Misshapen/Malformed rational Passionate elements in Desire for pleasure faculty (logismos). Covers the soul overpower the overpowers the both “mindless” ignorance rational faculty. rational faculty. (anoia) and “unlearnedness” (amathia). Present In Honest impious criminals Unpremeditated Premeditated crimes. crimes Devious impious criminals (when combined with ignorance). Treatment Chastisement (for Fines. Corporal For premeditated mindlessness) or elenchus (for punishment, capital crimes: Fines. unlearnedness), both punishment, exile – Corporal administered in the combined with punishment, capital sōphronistērion prison. ambient education at punishment, exile – the hands of the state’s combined with practices, laws, fellow ambient education citizens etc. at the hands of the state’s practices, laws, fellow citizens etc. For devious impious criminals: Life imprisonment in the Tartarus prison Figure 2

95

IV. The Moral Psychology of Incarceration

Although the Laws does not make explicit the connection between individual psychology and political institutions in the way that the Republic so famously does, the psychological basis for pro-social behavior is an explicit and constant theme of the work. From the first pages of the dialogue, the interlocutors are forced to acknowledge that a city’s struggle to maintain order and succeed against other cities is analogous to a person’s struggle “against himself”, to be “better than himself” (626e-627a). The Athenian expands upon this analogy using the image of a puppet, pulled in one direction by the “golden and holy” string of “reasoning” (which is linked to the form of public reason that is called law 644d, 645a);211 and pulled in the other by pleasures and pains, as well as expectation, fear, boldness, and other passions (pathoi).

This image gives a structure for the role of both education (paideia) and law (nomos) in connecting the individual mind with the political regime. The citizen must be adequately educated to provide his reasoning (logismos) the assistance it needs to overcome the pull of pain, pleasure, and passion on behavior (645ab).212 The legal framework of a polity, insofar as it is well designed, both aligns with reason (the link between human reason and political law is essential to the Laws)213 and provides the content of the moral education the citizen will experience from childhood and throughout his life through contact with various social institutions (cf. 643e).214 Becoming “weaker than” or “stronger than” one’s self is thus a question

211 For what “reasoning” actually is, see(Moss 2014) , but the psychic processes that make up reason are less important in this context than its relational role.

212 Agreeing with (Nightingale 1999), p. 104 and (Klosko 2006) p. 221, against (Meyer 2015) ad 645a2.

213 For more on the link between law (nomos) and reason (nous) see (Abolafia 2015), with bibliography.

214 See (Wilburn 2012).

96 of not only the power of the reasoning, but reason’s assimilation of generally correct principles absorbed through contact with the civil law.215 When a person’s reasoning aligns with the objective demands of rational law she can be said to have “overcome herself”, or, to use another

Platonic metaphor, she will reach a harmony (xumphōnia) between reason, pleasures, and desires

(653b).216 Such a citizen can be said to be “well-educated” (653c). Given the role of education in aligning the reasoning faculty with civil law, the potential for utilizing education in punishment is clear. In fact, the Laws is well within the Protagorean project of creating a continuum between education and law. “Education is the drawing (agōgē) and guiding of children towards right reason according to law” (659d), and judges in the courts are teachers of the public (659b). When education fails, when psychic harmony has not been reached, when a person is not stronger than herself, then punishment – remedial education – is necessary.

As in other dialogues, the idea that punishment is an extension of education comes bundled with certain claims. A failure of education implies either that the criminal lacks some knowledge or that some other cause is repressing knowledge that the criminal does have.

215 Plato has not abandoned the potential of the “shame culture” he exploited in Socrates’ argument with Polus. My interpretation agrees substantially with that of (Wilburn 2012), p. 33, as opposed to what he calls the “standard interpretation” where “reasoning” is limited to what an individual “takes to be correct”. The “help” (645a) that reasoning receives is not only from a person’s own psychic resources, it is all the persuasive power inherent in the laws, and the habit of law-following – in short, it is the tendency developed to listen to the voice of law and reason. The idea that social and political context is heavily implicated in human reasoning will be explored in Chapter Three, below.

216 (Meyer 2015) p. 161ff (ad 643b1) notes that the language of “stronger than” or “weaker than” is merely meant to appeal rhetorically to the interlocutors (and reader), but that Plato thinks correct behavior his actual a harmony between parts, not a victory of one part. My reading is an attempt to harmonize Sauve-Meyer and Wilburn, for while virtuous behavior does require all parts to function together in and their proper and proportionate roles (see below), this sort of behavior only occurs when one sort of “training” (agōgē), linked to the rational law, triumphs over another, unplanned pattern of psychic life (indeed the description of these psychic patterns as different life-courses [bioi] lends credence to this reading – see 732e-734d) .

97 Therefore, “the unjust man is indeed bad, but he is unwillingly bad” (860d).217 In one of the rare moments of true dramatic action in the Laws, the Cretan Clinias expresses discomfort that according to the Athenian’s schema, it seems impossible to distinguish appropriately the punishment for a great crime from that for a small one, grand theft from petty larceny (857b).

This interjection gives Plato’s mouthpiece, the Athenian Stranger, an opportunity to address the question of the intersection of moral theory and real punishment – how can an actual criminal justice system reflect the moral principles that provide the ostensible justification for punishment? The importance of this question to Plato is made clear by his extended defense of

“doing philosophy” (philosophein, in one of only two appearances of the word in the Laws) – demanding attention to conceptual detail in a context where one might expect common sense to play a larger role. As in the Gorgias, Plato exploits the tension between what the logic of the argument demands and the existing beliefs about punishment to place the stakes of the argument in greater relief.

The first philosophical distinction the Athenian makes is between a crime itself (adikēma) and the injury it causes (blabē). Even if it is agreed that the crime is involuntary, law must still consider the damage to the social fabric that crime creates, and it must attempt to repair that injury, perhaps by means of compensation. Whatever the means, the Athenian is clear that one element of punishment is purely expressive, the duty to shift members of the community “from difference to friendship” (862c). To this end, certain punishments like monetary restitution make sense based on the social necessity of appeasing the victim, even if according to Plato’s

217 From several passages, including 731c-e and 860c-864a, it is clear that the Laws is in agreement with the Gorgias about both the involuntary nature of crime, the rehabilitative character of punishment, and the social context for punitive correction.

98 understanding of justice, such payments are irrelevant to “true punishment.”218 As for the nature of crime (injustice) itself, it should come as no surprise that it is a “ disease of the soul” (862c), and consequently, the differences in typology of crime that so concerned Clinias can be understood as different psychic pathologies that must be treated using different techniques.

Without committing himself to an account of moral psychology in the strict sense (of the sort he did in the Republic), Plato goes on to give a description of just what is going on in the soul of the criminal.219 There is something (1) in the nature of the soul that is connected to passionate impulse (thumos), and it “overturns many things through irrational force” (863b4).

Presumably one of the things it can overturn is rational decision making. There is a separate power in the soul (2) that responds to pleasure, though it works differently, achieving its aim

(boulēsis) through “force of deceit” (863b8). Each of these elements, it’s implied, can overcome the rational thought (logismos) or considered interests (boulēsis) of the actor, the first violently and immediately, the second slowly and corrosively. There is also a third cause of crime – ignorance (agnoia) – which can be further subdivided into a “simple” form (3) and a double form

(4), where ignorance is compounded by the illusion of wisdom (doxē sophias), not knowing what one thinks one knows. This worst type of ignorance itself comes in two forms, the “great and savage” ignorance of the strong (4a) and the weaker errors of youth and old age (4b).

218 Throughout the Laws, the necessity of propitiating blood-guilt, and the concern for making restitution to sib groups reminds the reader that, whatever its philosophical sophistication, Plato is legislating for a pre-modern city. The moral basis for the law may be one of reform, but the legal necessities of the Greek city are those of an ethic of revenge. Plato himself seems conscious of this tension. In this passage, speaking of restitution, he uses the atavistically Homeric word ἄποινα for the only time; see (Schöpsdau 2011) 2011, ad 862c1.

219 As is well-described in (Wilburn 2013b), the discussion of the moral causes of crime should not be taken as a commitment to a specific theory of moral psychology – it is a context-dependent guide to the points at which psychology interacts with punishment. When the Athenian writes that “anger” (thumos, also passion or boldness) may be a “part of” (meros) or a “passion” (pathos) in the soul (863b), he hopes that his description may appeal even to adherents of different psychological theories – another intriguing clue about the “public reasoning” of law.

99 Using this scheme (reminiscent of, but not identical to, the theory of the soul in the

Republic), the Athenian moves on to clarify what justice and injustice mean. Injustice is the tyranny (turannis) of passion and fear, pleasure and pain, and jealousy and desire in the soul. In short, it is the disordering of the soul, however it may come about. If, on the other hand,

the [true] belief about the highest good, whether it is a city or a private person who thinks to aim at it, […] prevails in the soul and regulates every man, even if some error is made (kan sphallētai ti), everything done thus must be said to be just…although most believe the damage to be an ‘involuntary injustice.’ (864a1-5).220 This is a roundabout way of saying that justice comes from “true belief,” and injustice comes from the absence of true belief. According to this strong intellectualist thesis, even justice does not preclude some errors (though just what these errors could be goes unsaid).221

1. The non-rational psychology of traditional punishment

In these passages, Plato makes an important distinction concerning the causes of crime.

He distinguishes between passion and pleasure, both of which act “tyrannically” to make a person “stronger” or “weaker” than herself (for the reasons cited above); and ignorance, which is of a different species entirely, yet still causes people to act against their best considered inclination (boulēsis). This division is stated even more clearly in a parallel discussion of the definition of injustice in Plato’s Sophist. There, the method of dialectical separation and division leads to the identification of two forms (eidē) of badness in the soul. The first is wickedness, which is a disease due to civil war (stasis) between beliefs, desires, anger, pleasures, reason, and pain in the soul ([1] and [2] above). In the other, ignorance ([3] and [4] above), which manifests

220 An ambiguous sentence. I adopt Bury’s emendation of the text in his Loeb edition and the position of (Saunders 1968) about the meaning of κἂν σφάλληταί τι, as well as his surmise about the meaning of τὴν δὲ τοῦ ἀρίστου δόξαν, which I agree must approximate ὀρθὴ δόξα.

221 Here Plato seems to be closing off a certain understanding of the Socratic tendency towards intellectualism. Socrates’ intellectualist heirs, the Stoics, go on to have great debates over whether the Sage can err in anything at all. For Plato, the answer is unequivocally yes. It seems likely that Plato has in mind the erring, yet just (and possibly even wise) atheist of Book X.

100 as a sort of “shamefulness”, the soul tries to aim itself toward the truth, but misses the mark, due to some disproportion (ametria) in its faculties.222 Again, when discussing the cure for ignorance, the interlocutors realize the category must be further divided. The larger, more serious sort is the recognizable genus of “not knowing what one thinks one knows” ([4a]), which is the cause of

“when we err (sphallometha) during contemplation” (Sophist 229c5-6). This type of ignorance, it turns out, has a particular name (“foolishness” – amathia – the same word used to describe the honest atheists imprisoned in the reformatory prison) and a unique solution – liberal education

(paideia – the task carried out in that prison).223 When applied to the Laws, this seems to be the sort of ignorance that carries within it both the most dangerous sorts of crime and apparently, the example of justice - the just man who makes some intellectual errors (sphallētai ti).

The picture of criminal psychology that emerges from these passages has a great deal of significance for Plato’s penology. The first two types of injustice are the result of some internal discord in the soul, and can be cured through discipline (kolasis), technically a reordering the parts into their correct arrangement. In these crimes of passion and pleasure – an overpowering

(by passion) or an undercutting (by pleasure) of rational thought – the rational element in the soul is intact, but silenced. The goal of corrective punishment therefore, is not to act on or appeal to reason, it is to disencumber reason from its impediments. In the Gorgias Plato presented, via the exchange between Socrates and Callicles, a theory of how the pursuit of pleasure was the cause of crime, and how the restriction of pleasure (or the dialectical proof that pleasures were not what the criminal thought they were) could serve as punishment. He seems to be taking up

222 Or ugliness. See Sophist 227e-228d.

223 Liberal education can be further divided into traditional “chastisement” (τὸ νουθετητικὸν, 230a8), and the most effective way of deflating ignorance, dialectical refutation (ἔλεγχος). It will be recalled that these are the two tasks of the jailors from the Nocturnal Council.

101 that theme in the Laws. From the list of tools the Athenian gives for addressing injustice – “deeds or words, or pleasures or pains, or honors or dishonors, or monetary fines or gifts” (862d) – it seems that pains, fines, and dishonor might all be used to temper the pleasure-seeking element that drove crime. What’s more, Plato assimilates crimes driven by anger/passion into this schema, calling passions “painful,”224 and suggesting that just as administering physical pains can counteract physical pleasure, administering psychic pains (through the loss of honor, for instance) might be the correct antidote to the psychic excitement of anger.

For this interpretation to cohere with the reformative core of Plato’s thought, non- educative punishments must have some connection to the rational element that produces just behavior. Here, the language of the Sophist is helpful. Non-rational punishments (whether corporal or pecuniary) are able to suppress one of the parties in the “civil war of the soul.”225

This is the (possibly painful) “break-up of an existing pattern” of behavior which allows for the new habituation of the individual.226 Indeed, Plato seems to view incarceration (without concurrent education, the sort referred to in the Laws as “bonds”) as a balance between the shock of non-rational punishment and the respect demanded free people in a city.227 Habituation, or reeducation, need not be an explicit part of the punishment for crimes originating in the non- rational elements of the soul – the whole constitution of the Laws is designed to do the work of

224864b. The idea that the psychic pain of anger (and comparable pleasures like revenge, or expectation) is analogous to the physical reaction to pleasure is one used by Plato here and at Philebus 40e. The logic of the comparison is controversial, and is discussed, along with the parallels to the Gorgias at length in (Wilburn 2013b), pp. 119-121. See also (Meyer 2012).

225 In the Laws these punishments include fines, exile, and yes, incarceration (though probably in the marketplace jail – see the passage on assault [880cd], and the comment of (Saunders 1991), p. 274).

226 (Saunders 1991), p. 174, with an apt comparison to the physiological theories of the Timaeus.

227 This use of incarceration is the closest thing to evidence of a link between the discourse on incarceration as a liminal corporal punishment in 4th century Athens (see Chapter One above) and the penology of the prison in the Laws.

102 this habituation. Once any pathologies have been removed through the shock-therapy of non- rational punishment, the society described in the Laws will ensure that the rational element

(logismos) is in control of practical reasoning within the individual soul and correctly oriented to the principles of the society outside of it.228

Plato’s description of the non-rational causes of some crimes allows him to propose non- rational punishments that can fix the psychological deficit in the criminal and improve her to the satisfaction of society. Although the continually progressing structure of the Gorgias elided this, non-rational forces such as shame and financial (or even physical) pain can be directed effective in addressing criminals whose love of pleasure has overpowered their rational adherence to law or balanced power of choice (boulesis). By developing a place for non-rational punishment within the framework of a “rehabilitative” theory, Plato has made a concession to the common- sense view that conversation will simply not be enough for every sort of criminal and every sort of crime. Nevertheless, Plato has not given up on dialectic as an important technique of punishment – he has just reached a much more precise understanding of how and why dialectic improves the one who undergoes it. Dialectic is a cure for criminal ignorance.

2. The rational psychology of incarceration

Ignorance, the last cause of injustice, is of a different sort than the other two and must be treated with different means. As was noted above, ignorance comes in two different varieties.

There is ignorance in its minor form, simply not knowing enough to do the right thing, but that’s a rather uninteresting category, easily treatable, according to the Sophist, through “technical training” (228d). More worrying is what the Athenian calls “a distinct and separate category,

228 The legislator’s task of balancing internal (persuasive) and external (coercive) tools is a theme of Chapters Three and Five, below.

103 [which] is of expectations and opinion – it is a mere unsuccessful shot at the truth about the highest good” (864b6-7) – ignorance about ends.229 These are the crimes committed by those who think they know what they don’t – by people like Callicles. Ignorance is a unique phenomenon. It does not involve one psychic element overpowering the others (863d8) – it is an incompleteness within the reasoning element itself. As in the case of Callicles, this intellectual failure may leave the ignorant person more susceptible to the “civil war within the soul” that characterizes other causes of crime, but, it need not. 230 .

Plato distinguishes between ignorance combined with an “incontinence” towards other psychic impulses and the case of a fundamentally just person (with a basically well-ordered soul) who errs solely intellectually (864a). Ignorant criminals who also suffer from the “civil war” are the “dishonest” sort of criminal mentioned above. They have a defect in reasoning and so cannot be punished non-rationally, but they also have unbalanced psychic forces and so cannot be taught gently. They will be punished in the Tartarus prison. The second sort of ignorant criminal, without the psychic “civil war”, is the honest sort of criminal discussed above. The correction of her ignorance will take place in the sōphronistērion.

Ignorance must be countered with knowledge, so this category of crime demands techniques of punishment that teach. Across his corpus, Plato uses a consistent set of terms for the sort of punishment that imparts knowledge. Generally, he appeals to the process of “liberal education” (paideia, cf. Sophist 229d) – but here, a further distinction is demanded. Some cases

229 Adopting the emendations and translation of (Saunders 1968) (pp. 432-33), with further emendations for continuity.

230 Those who do not are honest. See (J. Roberts 1987), who notes that the influence between ignorance and injustice can flow both ways: “One must be careful not to confuse the ignorance implicated in injustice, the ignorance due to the corruption of reason by undisciplined appetites and emotions, with the ignorance that is a cause of wrongdoing distinct from injustice. The latter will have to be purely intellectual in origin and not due to habituation to bad pleasures” (p 28).

104 of ignorance can be fixed by what the Sophist passage calls “chastisement” (one of the two tasks assigned to the sōphronistērion at 909a). This activity corresponds to a paternalistic sort of

“scolding or encouraging,” and can be applied to any criminal exhibiting ignorance (agnoia). In the context of the sōphronistērion it can be conjectured to refer to the punishment of the deist and traditionalist forms of impiety.

This chastisement is a more active version of the same process encouraged throughout society by the laws themselves. Of the three types of atheists, two, the deists and the traditionalists, are said to be driven by a “lack of reasoning” (alogia, 900a) and a certain intellectual weakness (ou dunamenos). They seem fit to be chastised. The treatment this type of criminal gets must be different from the correction afforded to the purely intellectual atheist, the sort who “missed the mark” in understanding philosophical first principles. The Sophist describes a more demanding form of education for “someone who thinks he’s saying something though he’s saying nothing” (230b): “[The punishers] collect his opinions together during the discussion, put them side by side, and show that they conflict with each other at the same time on the same subjects in relation to the same things and in the same respects…Refutation [elenchos] is the principal and most important kind of cleansing [katharsis]” for this sort of person.231

Both the Laws and Sophist passages echo language that Plato used in the Gorgias. If our argument is correct, the analytical distinctions in the Sophist and the political institutions of the

Laws are meant to compliment the arguments from the Socratic dialogues. There is, however, one striking and important difference from the line advanced in the Gorgias. This concerns the

Tartarus prison and its sentence of “life without parole”. In one sense, the harsher prison’s deterrent function hearkens back to the Gorgias myth and incurable souls “strung up” as a

231 Sophist 230b,d, White trans. in (Plato 1997).

105 warning to others. The psychology, however, is different. Plato is explicit that this prison is for criminals whose ignorance is mixed with “incontinence with respect to pleasures and pains”

(908c, Bury trans). While the pathology of ignorance may be the same in fundamentally just and fundamentally unjust atheists (the former “honest” and the latter “devious”), ignorance that has already made way for the “diseases in the soul” related to the rule of passion and pleasure cannot be cured by pure dialectic. The moral psychological theory here does not negate intellectualism

(ignorance, or the weakness of the reasoning element, is still the cause of all crime), but Plato is longer flirting with the idea that learning can cure all ills.

The moral psychology of criminals is the element that explains the difference between incarceration in the sōphronistērion or Tartarus prisons and the other available punishments

(fines, exile, incarceration in the marketplace jail, or any corporal punishment). Why did Plato only present this fully worked out system in one of the many texts dealing with punishment?

Perhaps Plato did not make explicit the full range of punishments in other dialogues because he did not have the psychological theory to do so at hand. Aside from being reductive, such an approach does not explain why Plato kept a tripartite theory of punishment in a work that does not explicitly endorse the tripartite soul.232

The penology of the Laws contains a diverse system of punishments, all grounded in the theory of reform and rehabilitation – even if only “intellectual crimes” are treated solely via education and dialectic. In other contexts where Plato either expounds the “ideal theory” of

232 See (Bobonich 2002), and (Wilburn 2013b), (Wilburn 2013a). In this chapter, I have been careful not to rely on a chronological account of the dialogues. Despite scholarly consensus around an early-middle-late division of Plato, within which the Gorgias is usually assigned an early position and the Sophist and Laws a late one (see (Kahn 2002) for the “achievements and limitations” of this approach), I accept the caution of (Zuckert 2012) (p. 51ff) that the Laws does not want to be read as the “conclusion” to Platonic thinking. An internal reading that considers Plato’s goals in each dialogue can often achieve the same clarity as a chronological reading, without any methodologically tendentious assumptions (see especially (C. Rowe 2007a)).

106 punishment or deals with the specific cases of sophists, sophistical politicians, and other elite actors whose crimes are crimes of “thinking they know what they do not,” especially about moral and political ends, the appropriate technique of punishment truly would be dialectic.233 In the

Laws, with its attention to the practical, granular detail of everyday life, Plato needs to deal with the sorts of crimes, criminals, and penological situations that were irrelevant in other contexts.234

Even so, his conclusions about the compatibility of other punishments and rehabilitation are by no means in conflict with his earlier thought.235

Plato’s account of punishment in the Laws stands and falls on his interpretation of certain facts about moral psychology and certain assumptions about political life. If the non-educative punishments like fines, confinement, and exile do not have the desired effect on the unruly passions or untamed lusts for pleasure (or if passion and pleasure overpower reason is not in fact the cause of crime), then Plato loses the justification for including these punishments in his system. If standards of political life dictate that every citizen has the right to freedom of thought and freedom of expression, then Plato’s understanding of intellectual and political crimes that undermine social order and demand reeducation will become distasteful, not to say irrelevant.236

233 As attested by the similarity of vocabulary to the description of the atheists of Book X and the sophist in the Sophist or Callicles in the Gorgias. When Protagoras makes a distinction between technical knowledge (dēmiourgikē) and political knowledge (322b, this distinction reappears at Sophist 228d), perhaps it hints at just what sorts of crimes he thought education (paideia) was meant to address. Looking back over the other dialogues touched on in this chapter, the Gorgias, and even the Republic are most immediately concerned with the behavior of political elites, and especially their conduct as rulers. The tyrannical examples argued over by Polus and Callicles, the model souls mentioned in the myth of Er, none of them are criminals of passion, none are petty thieves. The prisons of the Laws are designed for just the sorts of miscreants that concerned the interlocutors of the other dialogues – would be tyrants, sophists, and other elite threats to the social order.

234 For the non-ideal character of the Laws and its aims, see Chapter Three, below.

235 (Shaw 2015), cited above, gives a reading of non-rational punishments such as exile in the Gorgias fully in line with the picture of moral psychology in the Laws.

236 See (Shafer-Landau 1991).

107 Even if Plato’s reasons for incarcerating do not appeal or apply to contemporary societies, the structure of his thinking is still useful. Plato’s attempt to fill out the consequences of his theory of punishment is the very antithesis of positing a form of punishment that has no relation to social life. His long attempt, over multiple works, to figure out what “true” punishment looks like ends in a compromise between rational and non-rational techniques of punishment. This compromise suggests that the philosophy of punishment is far more “non-ideal” than is usually acknowledged. To justify a theory of punishment requires going all the way down to the social institutions that carry out sentences and all the way down to the identities of the criminals who find their way to the docket. Few theories of punishment meet this standard.

Conclusion: Incarceration and Plato’s Social Thought

Incarceration in the fourth century was a new phenomenon, but one with roots deep in the soil of Athenian democracy. The jail, a building that had stood at the heart of city for decades, was gradually being put to new uses, uses which made the prison a matter of interest for the orators and politicians who battled for control over the institutions of democratic power and the interpretation of democratic ideology. Demosthenes’ speech against Timocrates would have been delivered just around the years it is widely believed that Plato was writing the Laws. But for the philosopher, the prison came as an institutional solution to a conceptual problem that had haunted his work since the death of Socrates – how can a city justly punish? Part of the answer to this “how” question was “by means of rehabilitation and reeducation” – an answer that fits neatly into the schema of philosophies of punishment available to the modern reader. But Plato was not satisfied this approach – he understood that full answer to the philosophical problem required producing a technique through which the theory of rehabilitation could be accomplished. He

108 found this technique in dialectic – a painful process that changes the souls of those who practice it. In the Laws he saw the undefined and untested institution of the prison as the characteristic site of reformative punishment.237

The first appearance of both reform and the reformatory are clearly a landmark in the history of incarceration. Plato’s prison, however, has a number of exceptional aspects that demand more attention, and a number of puzzles which remained to be solved. One of these is the identity of its inmates. The prison and dialectic, which are present both in both images and arguments throughout Plato, are, in the event, only applied to one sort of criminal, the atheist of the Laws. The distinction between elite, or intellectual, crime and all other forms of wrongdoing suggests that more is going on in Plato’s theory of incarceration than meets the eye. The next chapter will attempt to show how Plato’s psychological account of the causes of crime fits with the heterodox identity of his prison’s inmates. To complete our account of the birth of the prison in ancient Athens, we will have to pick up at the precise place where Socrates’ interrogation faltered in the Gorgias – with the culture of shame in Greek society.

237 (Hunter 2008), p. 201 recognizes that, unlike the historical Athenian prison, Plato’s reformatory prison is in some ways recognizably like the modern penitentiary. The remainder of this dissertation will attempt to show just how and why that is so.

109 Chapter Three: Shame and the Social Theory of Incarceration in Plato

This dissertation’s first chapter explained the historical and conceptual background for incarceration in Plato’s Athens. Arguments for the practice of confinement, it turned out, fit into a broader trend in democratic punishing – one that valued gentleness and future-oriented methods over harshness and retribution. The next chapter gave an internalist account of the development of incarceration within Plato’s reformative theory of punishment, focusing on the moral psychology of crime and the need for punishments that could correct, not merely restrain, wrongdoing. The aim of this chapter will be to provide a fuller theory of why Plato introduced the prison, an institution for reformative punishment, specifically in the Laws, and why this punishment, an ideal instrument for correction, was to be applied to only a narrow class of criminals – the atheists.

The answer to these questions will return us to several themes that were touched upon but not resolved by Chapter Two. Foremost among these is the punitive role of shame, the psychological tool that Socrates tried to use against his interlocutors in the Gorgias, to mixed success. A closer look at the Laws shows that shame, in the guise of aidōs, is equally present there. To fully understand why the Alopecian intellectualist tried to use a reactive emotion to win an argument, and why his chronicler and student took up the same tool, will require a different approach, neither the historical analysis of the first chapter nor the internalist philosophical approach of the second. Following the diagnosis of Greek civilization as a “shame culture” by E.R. Dodds, a project later taken up by Bernard Williams, this chapter will attempt to work towards an understanding of ancient imprisonment by trying to understand the social fabric that Platonic punishment in general, and incarceration more specifically, was meant to restore.

110 I Shame culture and its preconditions

1. The Laws and shame culture.

The Laws is unique among Plato’s dialogues for its self-awareness of its own historical and cultural background and limitations.238 In the Laws, Plato retreats decisively from the idealizing register for which his political theory is widely known. The Athenian Stranger, for instance, acknowledges that there will never be a situation so propitious that these plans for a Cretan colony could be carried out in full – there will always be a balance between the ideal and the possible (745e).239 When reading the Laws, we are thus confronted with a text that is self- consciously in dialogue with the reality, and the limitations, of Greek society. The Laws is not only a project in moral or political theory, it is an intervention in social theory.

In order to understand the connection between punishment, an aspect of political philosophy treated throughout Plato’s corpus, and the prison, which appears only in the Laws, it may help to return to Plato’s account of the most basic version of rehabilitative punishment. In the

Protagoras the eponymous sophist tells a myth about the foundations of political life. According to the myth, Zeus had Hermes distribute the tools for administering a polis equally to all human beings. These “bonds of friendship” (philias desmoi) that maintain social order are “justice and shame” (dike kai aidōs, 322c),240 and they provide the standard by which the violation of social concord is to be judged (322d). For Protagoras, shame and justice are the origin, and the

238 For the deeply situated nature of the Laws, see (Morrow 1960), (Stalley 1983) p. 90; xxix-xxx; (Samaras 2002), p. 201.

239 For the non-ideal nature of the project see (Stalley 1983) p. 87ff, (Schöpsdau 1991), and (Bobonich 2002), pp. 384-408.

240 An idea with deep roots in the Greek poetic tradition – see (Taylor 1976), ad loc. An early and influential example is to be found in Hesiod’s excursus on justice Op. ll. 170-201.

111 measure, of political virtue. Punishment is the attempt to renew these bonds whenever they have frayed.

Much of Plato’s writing about politics, and punishment in particular, can be said to focus on the first political virtue, justice. The Republic, famously, has the traditional subtitle “On the

Just”, and above in Chapter Two, the discussion of punishment implicitly focused on its relation to justice – what sort of punishment is fitting, when, and why. Shame would seem to be the decidedly junior member of this partnership. To be sure, shame plays a role in the philosophical dialectics of the Gorgias, in relation to which it has received ample scholarly attention, but shame is rarely, if ever, placed at the center of Plato’s political thought, let alone his theory of punishment.241

Before delving any delving any deeper into Plato’s text, it is necessary to get a handle on the semantic field that corresponds to aidōs, the word that this chapter will consistently translate as

“shame”. The word brings with it an exceptionally rich web of emotional and reactive meanings.

Plato, as will be seen in the Laws, connects shame with the fear of being shamed (a feature Polus exhibited in the Gorgias). This sense naturally extends to the pleasure of being honored for a praiseworthy act and the pain of being blamed for a shameful one.

The dictionary sense of shame, however, and its central meaning in Homer and other early poets, is more immediately respect or reverence – “for the feeling or opinion of others or for one's own conscience.” From this sense of awe or respect aidōs can also refer to the sort of reverence a pious (semnos, eusebēs) person feels before a superior, especially a god (or perhaps

241 The major exception to this is (Tarnopolsky 2010), which explores the tension between useful shame and dangerous (“flattering”) shame (p. 92) as it relates to Plato’s critique of democratic politics and contemporary democratic theory. Tarnopolsky’s reading, while insightful, does not adequately account for the final moments of the Gorgias that suggests the failure of even “good” shame to perform its function correctly. Conversely, (Locke 2015) addresses the “decline of shame” narrative in the history of political theory, but does not directly treat Plato’s texts.

112 a parent), and the meaning of the concept can often extend to the sort of behavior that leads to approval by others – shameful, and especially self-controlled (sōphrōn) behavior.242 The last sense proves especially important in understanding the social, political, and moral importance of shame. The well-established connection between shame and a particular set of character traits

(particularly continence around pleasures, and especially sexual pleasures)243 allows authors, including Plato, to use the word in one sense while hinting at, and even depending on an echo of, the other senses.244

The Gorgias is an excellent point at which to connect the two themes of shame and punishment. Socrates’ final interlocutor in the dialogue, Callicles, refuses (unlike Polus) to be shamed by Socrates, preferring to admit to any number of obscene or perverse preferences rather than to concede that he is susceptible to shame.245 It is to overcome Callicles’ obstinacy that

Socrates has recourse to his myth of an other-worldly house of correction in the concluding passage of the Gorgias. In the Laws, Callicles’ immoralism is replaced by the varied heterodoxies of unnamed “atheists”, and the otherworldly prison of myth becomes a this-worldly

242 LSJ, s.v. αἰδῶς. For these different senses of shame and examples in Greek literature, see (Cairns 1993) and (Konstan 2006), pp. 91-111. Recently (Satkunanandan 2018) has interpreted the role of shame in the Laws developmentally (following (Bobonich 2002)), suggesting that it leads beyond shame itself towards “Aidōs as reverence for the fragility of the law-bound polity” (p. 348). As we will see, there is reason to read the relationship between the institutions of the law and the social bonds of shame the other way, with the former serving to shore up the weaknesses of the latter.

243 For the central importance of sexual continence, see (Craik 1993). For the increasingly important link between shame and self-control (sōphrosunē) over time, see (Adkins 1994).

244 Additionally, in fifth and fourth century Athenian usage, the aspects of aidōs connected to shameful behavior increasingly came to be expressed using a related word stem – aisch-, see (Konstan 2006), p. 93-98 for an account of the overlapping senses of the two words. For the purposes of the current study the difference does not matter, particularly as Plato does not distinguish between the two. (Tarnopolsky 2010) p. 11 notes that the aidōs form does not occur in the Gorgias while, as we will see, it predominates in the Laws. This may be because of the “archaizing” language in and importance of a theological sensibility for the latter work.

245 Gorgias 494aff.

113 practice of confinement, but shame and the threat of shamelessness plays an equally decisive, and far more explicit, role. The remainder of this section will examine how shame shapes the social structure imagined by Plato as the background for his Cretain law code.

A. Shame, pleasure, and law The first book of the Laws is concerned, among other things, with the sort of education

(paideia) that makes people “eagerly desirous [epithumētēs erastēs]” of being good citizens

(Laws 643e). The austere militarism of the dialogue’s Dorian characters (the Cretan Cleinias and the Spartan Megillus) leads them to assume that the inculcation of courage and the martial virtues through rigorous training is the best way to foster good citizenship (because, they assume, the first virtue of the state is its performance in war).246 For much of the book, the Dorians and their Athenian acquaintance describe the ideal psychological profile inculcated by such training through the warlike metaphor of being “stronger” or “weaker” then one’s self, which, it turns out, mostly means “overpowering” or being “overpowered by” one’s inclination for pleasures or pains (633de). This framing allows the Athenian Stranger to discuss political virtue, which he defines as knowing how to “rule and be ruled according to justice [meta dikēs]” in terms of the moral psychology of pleasure and pain.247 From the beginning of the dialogue, the virtue of self-

246 As Sauve-Meyer notes in her commentary (Meyer 2015) ad 644b6-c3, the Athenian does not entirely endorse the “warlike” model of human behavior and may himself endorse an alternate “harmony-based” model. Whether shame helps a citizen “be stronger than herself” or merely withstand harmful passions (pathoi, cf. 649c) by achieving a harmonious psychic state, it is clear that Plato views shame as an important legal tool in the regime of the Laws. Here, as throughout the Laws, the Athenian is willing to compromise with traditional beliefs to reach the broadest possible audience.

247 643d. This precise definition of citizenship is echoed by Aristotle in the Politics.

114 control, which, it will be recalled, is connected verbally and conceptually to shame, is in visible in the background.248

The general moral psychology proposed by the Athenian Stranger was treated above in

Chapter Two, but it is worth returning to the discussion in light of the role that shame plays in it.

Each person contains two “foolish advisors,” pleasure and pain, that are controlled by “opinions about the future” that is to say, by “expectation” (elpis). Expectation about pain is called “fear”

(phobos) and expectation about pleasure is called “confidence” (tharros). Balancing between these is rational “calculation” (logismos) about the better and worse choice. This “calculation” is precisely what a law (as the “public decree” of the state) aims to influence. All legislation, viewed from the aspect of moral psychology, is about swaying expectation (and calculation) of future pleasure and pain.249

Given that central inputs for rational calculation are the anticipation of pleasure and fear of pain, the Athenian notes that fear will be a significant tool in the creation of law. From the perspective of the lawgiver, fearful expectation can more simply be called “shame” (aidōs),250 presumably because the fear (or expectation) of being recognized as “bad” produces the sense of shame. This shame-fear complex is of primary importance for the psychic struggle between pleasure and pain. It will be one of the tasks of legislation to “lead [citizens] into fear with the

248 Cf. for example, the second definition of sōphrosunē in Plato’s Charmides, 160e.

249 This paragraph is an elucidation of the terminology in at Laws 644cd. For varying interpretations of the moral psychology here, see the sources cited in (Meyer 2015), ad loc. The presentation is clearly hedonistic in character, though the meaning of this hedonism as presented, arguendo, is not entirely clear. (Stalley 1983) pp. 88-89 suggests that the limited “utopianism” of the Laws recalls the work of More and Bentham. As this passage, and chapters four and five below will show, this affinity is deeper and more significant than has heretofore been supposed.

250 Shame is apparently the name of fear viewed from the aspect of the lawgiver, that is, under the aspect of social control.

115 help of the law” (647c).251 The inculcation of shameful fear is accomplished “with the aid of justice [meta dikēs]), once again echoing the pairing of justice and shame familiar from elsewhere in Plato and Greek thought more broadly.252

Plato continues this investigation of political emotions with one clear example of just how the state might make use of shame – the public symposia proposed by the Athenian Stranger.

Drunkenness, with its suggestive possibilities of transgression and lawlessness, is the perfect testing ground for how a (male) citizen will behave in the face of the temptations of everyday life

(649d).253 For a person to behave well at a symposium means shame still exerts some control over his behavior, even when other social constraints are weakened.

Politics, insofar as it requires an understanding of the souls of citizens and their habituation, should be deeply concerned with the sort of information revealed by the behavior of inebriated citizens at symposia (650b). In fact, given what they reveal about the virtue of citizens, (Attic) symposia are more politically useful than anything one might learn from the night-time marches and secret disguises of the Spartan cadet class.254 Institutionalized drinking becomes, in a sense, a practical variation on the myth of the Ring of Gyges from the second book of the Republic – it tests the goodness of the good man when the usual inhibitions are removed.

251 As (England 1921) notes (ad loc.), this passage, and particularly the phrase “with the [help of the] law” makes clear that for Plato, shame is a state institution.

252 See, for instance, Hesiod, Op. l. 192 and Tyrtaeus (12.39-40).

253 The question of gender in the Laws is a vexed one, see (Moore 2005) and (Samaras 2010) among others. For the role of the symposium in social bonding in Athenian life around the time of the composition of the Laws, see (Davidson 1998), Ch. 2.

254 This placement of the (Attic/Ionian) symposium against the (Dorian) martial arts of Sparta and Crete suggests another way in which the Athenian is preferring the “harmony” between a person’s behavior when drunk and sober (cf. 653b) to a “victory” of his sober self over his drunk self. The symposium is a test that will show whether shameful attitudes still hold sway even when constraints are weakened. This makes it, in a sense, a version of the Ring of Gyges test from the second book of the Republic, and may ask us to view the actions of the characters in Plato’s own Symposium under a different light.

116 The symposium can reveal whether shame has taken root in the soul of the citizen, but it does not explain how the shame response will be inculcated through the action of the laws. In order to understand the legal and institutional production of shame,255 it is necessary to turn to two close corollaries, honor (timē) and blame (psogos).256 The Athenian introduces these two practices as primary tools for the transformation of the moral habits of a state (metabalein…poleōs ēthē,

711bc), and his friend Cleinias notes that praise and blame work through both persuasion and force. Blame, and the shame it creates, is an external imposition on the behavior of the individual

– but somehow people are themselves convinced that they want to be someone worthy of praise

(and not culpable for blame). In this way the action of shame can be said to be both persuasive and voluntary, forced and unforced. To the reader familiar with the Laws, this combination of persuasion and force through the use of praise and blame mimics what Plato frequently emphasizes as one of the key elements in the constitution that the Athenian is proposing – laws that not only act on the outside, but also persuade citizens to obey through an appeal to reason

(and, occasionally, emotion).257

It is precisely in its ability to act externally and persuade internally that shame is essential to the vision of law in the Laws. If a law must not only command but seem plausible to the person it

255 We use the term “institution” advisedly (although Bury, Sauve-Meyer, Saunders and others freely use it to translate the Greek terms politeia [lit: political arrangement], koinonia [lit: communal arrangement] and even epitedeuma [lit: undertaking]). Just as frequently, Plato does not even use any abstract noun to describe the things created by the laws, but for our purposes “institution,” with its varied English meanings, is appropriate. In a context close to that of the current study, (Hunter 2011) writes of the Plato’s project of “institutionalizing dishonor” (p. 142).

256 The connection between honor, blame, and shame is both psychologically intuitive and well-established in Greek literature. In the Hippolytus, as we will see, it is Phaedra’s fear for her honor that drive her to preserve her reputation for shame through the calumny against Hippolytus. For more on dishonor in the Laws see (Hunter 2011).

257 In his discussion of the Laws, (Cairns 1993) mischaracterizes the role shame plays in the dialogue as being “about conformity rather than commitment” (p.376). Plato’s aim in the Laws is precisely to collapse any logical distinction between conformity and commitment. (Stalley 1983) pp. 42-44 also errs in accusing Plato of excessive coercion. (Schöpsdau 2003) ad 711b4-c2 is closer to the mark in his appreciation of the internal/external dynamic, as is the excellent discussion in (Annas 2017), pp. 72-119.

117 commands, the sense of shame that a potential transgressor would feel in contemplating her deed goes some way to showing this rational/persuasive plausibility. Shame thus goes beyond the simple dichotomy of forbidden/permitted to draw in the opinions and habits of the social world.

The double design of law in the Laws, with a persuasive prologue (prooimion) joined to a

“coercive” statute, appears itself to imitate the general structure of shame, acting simultaneously on the internal sense of identity and external sense of what is approved of and appropriate.258

Praise, blame, and the expression of shame were important parts of Greek life, but they were not usually thought to be part of law, stricto sensu (they do not appear in the “Code” of Gortyn, nor are they brought out as “laws” in the speeches of Demosthenes and Aeschines, although orators frequently try to pain their opponents as shameful). In the Athenian’s proposed law code he includes not only the things that are normally “subject to law” (cf. 730b), but also the content necessary to “chastise and persuade” citizens about the right mode of conduct.259 Praise, blame, and shame belong to the things that educate (paideueōn, 730b) citizens and make them more

“well disposed” to the laws that are to be enacted.

The Athenian acknowledges that this is formalization of shame is a novelty (722e), but he insists that it is a necessary one. The need for the incorporation of praise and blame (and thus shame) into the prologues, and “non-statutory” material of the law-code in general, is a byproduct of the aim of the state imagined in the Laws – a state with a particular sort of virtue at its center. Although he begins the work with a discussion of courage and ends it on a note of piety, Plato gives pride of place to self-control at various points in the dialogue.260 At the

258 For the uniqueness of the prologues, (Bobonich 2002) pp. 97-119.

259 720a.

260 (Stalley 1983), pp. 54-56.

118 rhetorical peak of the “prologue” to the laws he praises self-control and wisdom as the highest forms of merit (730e) and at various points, self-control seems to stand as a sort of synecdoche for health of the soul (e.g. 743e-744a). This makes shame, as the midwife of temperance, of first importance to the functioning of the Laws, more so than in another city, such as that of the

Republic, where the first virtue is justice.261

The aim in the Laws is not only to produce self-controlled adults, but also to produce compliant citizens who are persuaded of the rightness of their own compliance. If, in Plato’s

Republic, the best city produces the possibility of the best life for the best sort of person, and, in

Aristotle’s Politics, the good city is one where a good citizen is also a good person, then the

Laws can be understood as a regime where the consummate citizen (akron politēn, 823a) is the one most consistently persuaded by the legislator. This person will be virtuous, even very virtuous, but her virtue will be a particular, law-governed sort – it is virtue gained “with the help of the laws” and, it should be said, with the shame inculcated by the prologues. The novel and exceptional use of shame can thus also be understood as a consequence of the particularly high premium placed on persuasion, in foro interno, as part of the constructional structure of the

Laws.

2. The Social Theory of Shame

A. The Nietzschean tradition

261 (Stalley 1983), p. 56 : “sophrosune is the raison d ’etre of the social and educational institutions described in the later books. It is as fundamental to the Laws as justice, dikaiosune, is to the Republic.” This observation could be profitably amended with “aidōs” replaced for sophrosune.

119 It is worth pausing for a moment over this double aim of law in the Laws. Law constructs institutions – it provides the framework for legal procedure, magisterial offices, education and so forth. But it also aims to convince, to act on the interior psychology of the citizen, or, in Plato’s language, the state of her soul. What the Republic attempts for a specific class through education, the Laws attempts to impose on an entire city, through laws that are both coercive and persuasive. The consequences of this political strategy for the practice of punishment are considerable. Chapter Two emphasized some of the ways that education and punishment can exist on a spectrum. The analysis of shame suggests that, where the Laws are concerned, punishment in its loosest sense, the infliction of some pain by some authority for some trespass - is to be an ever-present and widely distributed aspect of life in Plato’s Cretan city.262 To view this approach, as some modern liberal political theorists have,263 as a proto-totalitarian attempt at social control, is to miss an important element of Plato’s engagement with the structure of Greek society. In the Laws, Plato formalizes a role for shame that, it seems safe to say, was long informally accepted in the classical world.

The idea that the ancient Greeks had a different understanding of the relationship between the individual and the social whole than is prevalent in modernity goes back, at the very

262 It would be equally reasonable, and perhaps more sympathetic, to see education as distributed throughout the cite of the Laws – especially given that the distinction is not an easy one for Plato to make. For education as the central concept in the code of the Laws, and punishment as secondary see (Laks 1990) and (Laks 2005). We need not take sides in the argument between Laks and Bobonich over whether this education is merely about the emotional manipulation of praise and blame or whether it can be called “rational,” because, as we will see Plato’s moral psychology in the Laws collapses any easy distinction between the two.

263 The classic statement of this case is in (Popper 1945), especially p. 125ff. Similar sentiments are visible in (Friedländer 1969), p. 439, and recently in (Burnyeat 1997). Recently, (Mayhew 2007) has argued against Bobonich and Laks that Plato’s form of rational persuasion is only formally rational, persuasion “at the point of a gun.”

120 least, to Friedrich Nietzsche.264 E.R. Dodds, under the influence of Nietzsche and contemporary cultural anthropology (especially Ruth Benedict), borrowed a term then current in cultural anthropology to describe the distinction between the early Greeks and later, post-Socratic and

Christian thought as a the difference between “shame culture” and “guilt culture.”265 By this,

Dodds meant that internal, psychological “moral uneasiness” about wrongdoing was secondary, chronologically and conceptually, to an externalization of the causes of crime. For the early

Greeks, the god made one do a “shameful act,” but that did not say anything essential about one’s internal state. One did not have to be “guilty” about it.266

Both Nietzsche and Dodds view the oldest version of shame as a sort of external imposition, a stain akin to other religio-magical stains like ritual pollution (miasma).267 If this is true, however, then Plato’s use of shame to gain insight into (and control over) the individual’s own sense of correct action would seem to be a considerable innovation, and in no way a continuation of normal Greek self-understanding. Bernard Williams, a student of Dodds’, took up this line about the intersubjective and non-moralized nature of early Greek ethical thought, and considerably deepened it through the addition of a set of arguments about the internal plausibility of shame, not merely its external forcefulness.

264 Nietzsche’s analysis of tragedy as an experience that reaffirms “the bond between human beings” and breaks the “spell of individuation” (The Birth of Tragedy, (Nietzsche 2011), pp. 18, 56) may owe more to Schopenhauer than to Aeschylus or Euripides, but remains influential nonetheless.

265 Dodds 2004, p. 17.

266 Dodds 2004, p. 41-43.

267 Nietzsche: “‘Law’ was…an outrage, an innovation; it was characterized by violence-it was violence to which one submitted, feeling ashamed of oneself.” On the Genealogy of Morals 3.9 in (Nietzsche 2010), p. 114.

121 B. Bernard Williams’ phenomenology of aidōs

Drawing on the sense of “reverence” that is latent in the etymology of the Greek for shame,

Williams notes that one person is always necessarily shamed by another, an observer whose judgement one accepts as a rebuke. The existence of an external viewer whose values are at the same time one’s own illustrates some of the “bonding, interactive, effects of shame,”268 effects, of which, as we’ve suggested, Plato’s Protagoras was already well aware. Shame, for Williams, is an emotion that points towards the socially situated nature of ethical life in general. The “self” is always entangled in a web of relations with people who can invoke the shame response (or the related feeling of “reverence”); indeed, the self is formed by imagining those responses even before they are invoked. Such acts of imagining the views and opinions of others are not an imposition on moral life, they are a constitutive feature of it.

Shame is thus a pathway for mediating between the interests of the community and the interest of the individual in being recognized in a certain way. Where there is consensus around a person’s social role and the actions that are or are not appropriate to it, shame will be a useful internal check on behavior. When used as a form of punishment, shame has the added benefit of requiring a change in the person undergoing punished. One cannot strategically avoid shame, because someone who truly feels shame, feels it about being the sort of person who would do a given action, not only about doing the action itself.269 This, in turn, means that the removal of shame requires that one change one’s self. Only by being the right sort of person, in one’s own eyes as well as others, by modifying the “conception of one’s ethical identity” can one escape

268 (Bernard Williams 1994), p. 83.

269 Ibid. p. 81.

122 shame.270 The sort of punishment that makes use of shame and shaming will be future-directed, and holds out the promise of a mode of rehabilitation – a change in the character of the wrongdoer.

This stylized picture of shame is meant to highlight its differences from a closely related, but distinct reactive emotion. Guilt is also socially embedded, Williams argues, but guilt is a response to the anger of the victim (or the anger of society standing in for the victim). One is guilty about the act (in the past), one feels shame about who one is (now).271.

Williams develops his account of shame out of Greek literature (especially tragedy), but it agrees, in its essentials, with Plato’s use of shame in the Laws. Shame emerges out of just the sort of affinity between individual identity and social norm that Plato is trying to construct in his

Cretan city. The confluence between inner motivation and external directive (which Williams

270 Some of Plato’s interlocutors, who have intuited much the same thing that Williams has, make the point (which may have been current among the Sophists) that one can also escape shame by changing one’s position within the social matrix of power. The Great King of Persia, they argue, can’t be shamed by anyone. This is the argument Callicles advances in Plato’s Gorgias. See Williams, “Plato Against the Immoralist” in (Williams 2005) pp. 103-4.

271The Greeks clearly experienced both shame and guilt, given the varied ways that characters in literature and drama respond to having wronged another, but there is a crucial difference between the Greek reaction to guilt and to shame. For the Greeks, that bond between a wrongdoer and the wronged is the subject of a clear set of structures that law and custom provided for restitution. Adherence to the proper set of actions can turn away or dissolve the victim’s “anger, resentment, or indignation” ((Bernard Williams 1994), p. 89), with or without the intervention of law. Williams, following Nietzsche, finds the origin of moral guilt in even its most rarified, Kantian form, in this feeling of a need for restitution (or revenge) that emerges from the victim/aggressor relation. For any culture that views responsibility as distributed throughout a community rather than restricted to one agent, the existence of well- defined pathways to absolve the agent (and by extension, the community) are of the greatest importance. Guilt and shame can be generated by the same situation, but guilt can be expunged externally, by paying restitution (or, in a more legally sophisticated society, by “paying the penalty” to the state on behalf of the victim). The type of punishment that satisfies guilt is, almost by definition, less specified. It can be anything that satisfies the anger of the victim or community, whether restitution, pain, or death. The reaction to guilt, linked as it is to the particulars of the crime, is more backwards-facing than that towards shame. The wrongdoer does not need to change herself, she must only fully expiate her crime, as determined by tradition or law. This is the essence of retribution. Absolving shame requires a change in the character of the agent – this gives shame a closer intrinsic relationship to future-directed theories of punishment. Williams’ attempt to pry apart guilt and shame in the practice of Greek punishment is thus very helpful in explaining the divergence between the tendency for vengeance and the tendency for rehabilitation and correction in Athenian thought. The psychological prerequisites for both approaches were available from in resources of popular morality.

123 contrasts with Kantian ideas about moral motivation and heteronomy) mirrors the double action of force and persuasion that Plato placed at the heart of the legislative project.

Despite this apparent correspondence, there are at least two significant disparities between

Willaims’ account of shame and Plato’s. The first is Plato’s role as a villain in Shame and

Necessity. Williams accuses Plato of needing to moralize human psychology – of building a picture of the soul where inherently “good” and “bad” parts fight against one another – rather than accepting the amoral, socially determined psychology of shame and the particular identities of socially situated individuals (the moralized psychology Williams has in mind is, of course, that of the Republic – the psychic theory of the Laws is not discussed in Shame and Necessity).272

The second disparity is Plato’s insistence on formalizing shame through legal institutions.

Williams claims that the internalized other who gives voice to the threat of shame “embodies intimations of a genuine social reality,”273 or, in a more abstracted sense, the intimations of conscience. The knowledge that others have of the actor becomes knowledge “the self-shares with itself” (in Greek, suneidēsis, in Latin, conscientia).274 In the Laws, Plato places his trust in neither the web of social knowledge that citizens have of one another nor in the intimations of an internal voice. In order to understand why shame cannot be relied upon to moderate behavior by itself, it is necessary to turn to a text more skeptical about the internal and external dynamics of shame than Williams seems to have been.

272 In this, Plato and Kant share the same deformation professionelle (Bernard Williams 1994), pp. 98-100.

273 Ibid., p. 102.

274 Williams does not note this, but what he describes as the “bootstrapping” of conscience from shame (pp. 218ff) has its roots in 5th century Greek thought. See (Sorabji 2014), Ch. 1.

124 II. The social basis of shame: A reading of Euripides’ Hippolytus

1. Williams’ reading

Both Plato and Williams knew Euripides’ Hippolytus well.275 For readers unfamiliar with the

Hippolytus (or its adaptation in Racine’s Phèdre), the tragedy relates the consequences of the anger of Aphrodite at Hippolytus, the son of Theseus and prince of Troezen. Hippolytus, who worships Artemis, virgin goddess of the hunt, to the exclusion of all other gods, has taken a vow of chastity (an action that deeply offends the goddess of sexual desire). Aphrodite opens the play by explaining her plan for vengeance. She will cause Hippolytus’ stepmother, Phaedra, to fall in love with him. This will lead to Phaedra’s eventual suicide and finally to Hippolytus’ death after being cursed by his father.276

Williams, who recognized the importance of the play for any discussion of the classical understanding of shame, follows others (including Dodds) in noting that the tragic contest between Phaedra and Hippolytus is also framed by a contest between their two very different interpretations of the concept of aidōs.277 For Phaedra, he notes, shame is purely a question of reputation (eukleia), of being seen by others in a seemly and appropriate way, doing seemly and appropriate things. Hippolytus, however, trusts no one else in his community to understand the purity of his own actions. He is his own best witness, and is himself the sole worthy observer he can imagine.278

275 For Plato’s references to the Hippolytus in the Symposium and Protagoras, see (Sansone 1996) pp. 63-64.

276 In my discussion of the Hippolytus I have used the Greek text printed in (Euripides 1984). For a more detailed discussion of the myth and its different versions, historical and literary, see the introduction in (Euripides 1964).

277 (Bernard Williams 1994), pp. 95-97, see also (Dodds 1925) and (Segal 1970).

278 Williams uses these opposing viewpoints to show how Greek thought could separate out and grapple with the autonomous and heteronymous aspects of the shame structure. (Bernard Williams 1994), pp. 97-98.

125 In a close reading of one of the play’s most famous passages (ll. 335ff), Williams dissects

Phaedra’s complaint about the ambiguous nature of shame as an emotion with such distinct inward-facing and outward-facing characteristics. Phaedra recognizes this double (dissai) nature of shame, but puts it down to the difficulty in figuring out the appropriate opportunity (timing, kairos) for each type of behavior. If we had perfect knowledge of circumstances, we would not worry about the difference between the two aspects of shame because it would be entirely clear

(saphēs) how to act with reverence at any given moment (225-30).279 Read on its own, the passage is an example of human confusion in the face of the obscurity of how we are to live – it is, in line with Williams’ broader ideas about tragedy, an example of how human beings deal

“sensibly, foolishly, sometimes catastrophically, sometimes nobly” with an uncaring world.280

2. Shame and the social world: An alternate philosophical analysis

A. The structure of the play Williams’ analysis of Phaedra’s speech, while philosophically lucid, is literarily unsatisfying.

It, along with other current readings of the passage, isolates Phaedra’s speech, ignoring its position within the broader architecture of the drama. It is undoubtedly true that Phaedra’s misjudgment of the difficult question around shame leads to the disastrous events of the second half of the Hippolytus (she decides to share knowledge of her illicit passion with her nurse, and then, terrified of the consequences, arranges Hippolytus’ death in order to make sure that her

279 This passage is among the most commented-on in Euripides’ oeuvre. Phaedra’s emphasis on knowledge have led some to suppose it is a response to Socrates’ intellectualist dictum that “no-one does wrong knowingly” (on which see (T. H. Irwin 1983)). For a full bibliography of work on the passage see (Craik 1993) (although she herself comes to the unlikely conclusion that “aidōs” in the passage is limited to its sexual sense, an untenable position when viewed against the play as a whole) and (Halleran 2004) ad loc. (Kovacs 1980) is the most influential of the readings that understand this passage wholly differently from how I have construed it.

280 (Bernard Williams 1994), pp. 149, 164.

126 reputation remains pure). But one need not believe in the Greek gods to question Williams’ assertion that this dilemma is all about human actions, and that play can do just as well without

Aphrodite and Artemis.281 The remainder of this section will attempt to sketch (all too briefly) a different reading of the Hippolytus, one that may point out a crucial difficulty for Williams’ approach to shame, and perhaps for the moral psychology of social punishment as well.

We can begin with an observation about the play’s design. The opening and the closing speeches of the play, dismissed by Williams, exist in a chiastic relation to one another. The opening speech by Aphrodite, angry as she is at Hippolytus’ failure to worship her power

(sebein…kratē, l. 5) introduces a speech by Hippolytus himself that amply explains the worldview which has so offended the goddess. He begins by worshipping his mistress Artemis, first in word, with a ritual hymn, then in deed, by placing a wreath from a virgin (akēratos) meadow on a statue of the goddess. This image of the “untouched meadow” is already freighted with meaning. A personified Shame (which, it will be remembered, can also be translated as

“reverence”) is the gardener of these fields. And only those who are “naturally always self- controlled in all things” (that is to say, did not receive their sense of self-control, sōphrosune, through instruction) are allowed to enter its precincts. All others are called the bad, or unelect

(kakoi, l. 81).

There are a number of novel, even shocking aspects to Hippolytus’ beliefs.282 His speech takes sides in a then-current debate among the Sophists as to whether virtue is teachable (the most famous prooftext for this issue is, once again, Plato’s Protagoras). Hippolytus takes the

281 Ibid., p. 149. One can detect in Williams’ attitude toward the gods of tragedy a wider ambivalence towards how to deal with the question of the divine in interpreting Greek thought. This problem was also current for Nietzsche, and for another source for Williams – Walter Benjamin’s book on the German Trauerspiel.

282 (Euripides 1964) ad loc. (Bremer 1975) notes that setting this ode to chastity in a meadow, traditionally the site of erotic liaisons for gods and men alike, itself produces no small frisson.

127 old, aristocratic position that virtue is the purview of the naturally good (that is, the well-born, hoi aristoi),283 and combines it with the view that had begun to prevail in certain mystery-cults of the 5th century that goodness and purity go hand in hand – one has to be internally, “morally” pure to participate in religious rituals.284 As a result, Hippolytus’ understanding of shame is inward and exclusionary. The correct senses of shame and self-control are determined by an unvarying natural standard. Society as a whole will never produce the correct sense of purity, whether moral, sexual, or ritual, that belongs to the elect.285

The chiastic parallel to this passage comes at the end of the play, as Hippolytus is dying, dragged to death by his own horses. The boy calls out to Zeus: “Do you see this? That I who was pious (semnos) and godfearing, I who upheld self-control in all things, go straight to Hades; destroyed at the peak of life, I have labored for nothing to be pious in the face of men” (ll. 1363-

69). This speech by Hippolytus is followed by a final intervention from Artemis, who is standing above the action ex machina. Her last consolation to her devoted servant is to promise him that his name will “not be unknown” (ouk anonumous, 1429). He is to be held in the very public repute that he disavowed in the play’s opening. This phrase “not unknown” echoes Aphrodite’s claim in the play’s very first line that she is “not unknown” (i.e. is famous) among mortals.

The emphasis placed on the different meanings of shame at these two extreme moments –

Hippolytus’ bold declarations at the play’s beginning and his anguished “why hast thou forsaken

283 As echoed by poets like Pindar (Ol. 2, Ol. 9) this the naturally good means the well-born – an ironic view for the illegitimate Hippolytus to hold. On the play’s relation to fifth century Sophists and contemporary intellectual debates around virtue see (Conacher 1998). This position is particularly laden with irony as Hippolytus himself is technically a bastard.

284 For the background to some of Hippolytus’ statements, see (Euripides 1964), ad l. 73.

285 For the Hippolytus and the dispute between nature (physis) and custom (nomos) see (Berns 1971). Perhaps the best single article on the play, and certainly the best discussion of this passage remains (Segal 1970).

128 me” at its end –suggests that Euripides is interested in something more decisive than the difficulty of choosing between two imperfect approaches to shame. If we turn from the extremes to the precise middle of the play (at line 730 of a play with some 1460 original lines) Phaedra’s final words provide some evidence of what connects these two moments. She says of Hippolytus

“he will share in common this sickness of mine, and he will learn self-control (sōphronein mathēsetai).” This line is the textual and conceptual inflection point around which the play turns. Phaedra has taken up Hippolytus’ claim to natural virtue and decided to prove it false. She will teach him a meaning of virtue he did not know.

Euripides’ design in the Hippolytus is thus not only a presentation of shame in its varied meanings and in its most extreme expressions – Hippolytus’ private language of shame and

Phaedra’s nervous obsession over her honor (timē) and the reputation of her family. The play sets those versions of shame in direct and inescapable conflict with one another. The dramatic conflict is made symbolically richer by yoking the two interpretations of shame to two diametrically opposed goddesses. These goddesses should not be approached only as characters, or even as deities – they are also value-systems, representations of ideas and abstract concepts.286

The conflict between these two values-systems is heightened by a number of juxtapositions in the play, from Phaedra’s archetypically “feminine” ideas about life and pleasure to

Hippolytus’ hypermasculine “ephebic” activities (and extreme misogyny). But at the heart of the disagreement remains the contest between the social versus the private sense of shame. These

286 By this period, even the name “Aphrodite” was beginning to have the more abstract sense of “sexual pleasure” among certain intellectuals. The Hippolytus is a locus classicus for a particular tension in Greek religion that was growing more and more apparent in the 5th century. How can the gods disagree about what is good? Plato took on the question directly in the Euthyphro, but certain passages in the Hippolytus (e.g. ll. 1327-33) suggest the problem in a nascent form. Zeus, the mythological umpire of Olympian disputes, is absent from the action of this play, though Hippolytus appeals to him with oaths. I thank Francesca Bellei for urging me to clarify my thinking on this point.

129 two aspects are in some ways as clearly distinct from one another as the goddess of “nocturnal prowess” and the virgin goddess of the hunt – and yet somehow it is still unclear to Phaedra when she should appeal to one rather than the other. In the logic of the play, one cannot worship the goddess of sexual love and sexual continence with the same devotion at the same time

(Hippolytus himself says this more or less explicitly at l. 106), just as the reputational sense of shame may be in irreparable conflict with shame as a nascent form of conscience. It is hard to listen to others while listening only to one’s self.

B. The public preconditions for social emotions

The structure of the drama highlights the tension between these two positions. It is less clear what the philosophical content of the clash between the two senses of shame could be. Here, it might help to once again look for a chiastic parallel to Phaedra’s critique of the internal “double” structure of shame. When, after Phaedra’s death, Theseus confronts his son after learning of his crime, he begins by endorsing Hippolytus’ earlier declaration against taught virtue, complaining that it is impossible “to teach wisdom (phronein) to those lacking sense (nous)” (l.920). But,

Theseus complains, figuring out who is virtuous and who is not is just as difficult as Phaedra thought discerning the right practice of shame to be. The language here is precise and analytical, as was Phaedra’s. There is no clear proof (saphēs tekmerion, ll. 925-6) to distinguish true and false friends. It would be better if people spoke with double voices (dissas phōnas) rather than the one voice that disguises lies. The links between this speech and Phaedra’s are clear, from the

130 epistemically sophisticated word choice, to the frustration with one mode of expression (speech) for what are really two distinct phenomena (truth and deceit).287

If Phaedra’s confusion was caused by ambiguity of shame from an internal perspective,

Theseus is making a similar argument about the external appraisal of shame. The internal state of an agent is obscure to an outside observer, and deceit makes it difficult to prevent injustice.

Shame, as an element of any a just society, depends on a shared ability to recognize and agree on bad behavior. It is just such an ability that Theseus thinks is lacking in the case of Hippolytus. He demands to Hippolytus “show your face before your father” (947), invoking the sense of sight that is so important for shame. But Theseus has no expectation that shaming his son will work, because he does not trust Hippolytus’ own ideas about who he is, especially as regards his religious practice.

Theseus mocks Hippolytus’ claim to be close to the gods, and sneers at the idea that his son is “self-controlled (sōphrōn) and untouched (virgin, akēratos) by wrongdoing” (949). The picture of Hippolytus’ religious practice that Theseus gives is very different from both the opening image of the sacred meadow and Phaedra’s fevered visions of a powerful hunter. For

Theseus, Hippolytus’ single-minded devotion conjures up the strange world of the Orphic and mystery religions.288 The boy participates in strange rites, reading from arcane books rather than sharing the public religion of the community.289 It is precisely these practices that make

Hippolytus untrustworthy. His “pious words” (semnoi logoi, 957) can hide shameful designs

287 Segal, to my knowledge, is the only scholar to discuss this symmetry, (Segal 1970) p. 290.

288 See (Guthrie 1952), and (Burkert 1987). The debate between Burnett, Hallerhan and others over whether Hippolytus is in fact an “orphic” figure somewhat misses the point of the depiction. Theseus is throwing all sorts of cultic mud at Hippolytus, regardless of what might stick.

289 A reference to 5th century mystery-texts like that found on the Derveni papyrus.

131 (aischra). This lack of a shared religious language, Theseus suggests, leads to the failure of a shared moral language. It is not that religious and ethical life are the same for Theseus, it is rather that the signifiers of each reinforce one another and create a shared field of recognition.

Their absence leads to confusion and ambiguity.

As a result of this mistrust, Theseus will hear neither arguments (logoi) or oaths (horkoi) from Hippolytus. His son’s responsibility (aitia) is beyond doubt (960-961). This rejection of the forms of social mediation around guilt and responsibility points to the relation between the breakdown in the ritual sphere and a concomitant breakdown in the civil and political spheres.

Hippolytus, unconsciously echoing Phaedra’s earlier rhetorical framing of an apology before the jury, reemphasizes his claim to be both most self-controlled (sōphronesteros) and fervid in in the worship (sebein) of the gods (995-6). He reiterates the link between the moral and religious, and in fact, he basis his defense on his religiously motivated virginity (he does not, he claims, even look at pornographic vases – how could he physically assault a woman?). As we have seen, it is this very fact that sets him apart and makes him subject to his father’s suspicions. Theseus’ critique of Hippolytus’ self-worship (seuton…sebein, 1080) makes the father’s rejection of his son a powerful combination of the cultic and the ethical.

The confrontation between Theseus and Hippolytus brings in to focus how dependent certain social institutions including oaths (and perhaps even shame itself) are on a pre-existing consensus about other related practices (especially religious rituals). Theseus refuses to allow any recourse to oaths or pledges (1055), and Hippolytus resigns himself to the idea that even breaking his oath to the Nurse and revealing Phaedra’s advances would be of no avail, because the fundamental conditions for trust are absent (1063). This breakdown of a shared cultic/legal framework gives the conflict between the two goddesses new meaning. In pitting antithetical

132 religious values against one another, the Hippolytus goes some way to performing the very breakdown of religious consensus that it describes.290

If Bernard Williams’ account in Shame and Necessity is right, shame, as the early ancient

Greeks understood it, carried with it a sophisticated picture of intersubjective moral agency that helps us to conceptualize alternate modes of relating individual ethical life to the demands of society. As our reading of the Hippolytus suggested, however, shame cannot stand on its own as the cornerstone of shared ethical life. There is, as Phaedra noted, the internal problem of shame – when should one listen to it, and how? Then, there is a serious external problem. In order to function, shame requires a complex and overlapping relation of additional social structures, including religious and legal practices that create the conditions for a shared understanding of behaviors and norms. In the Athens of Euripides, it was at least conceivable that such norms, and the bonds sustained by them, might break down, and it is this fear that seems to have motivated

Plato’s institutionalization of shame in the Laws. Euripides’ Theseus fears that his son cannot be shamed. Plato described a class of people who encourage shamelessness through their words and their deeds. In the Gorgias this is Callicles, in the Laws it is the atheists.

III. Shame and Incarceration: Back to the Laws

This chapter began with the puzzle of why incarceration, a technique with deep roots in

Plato’s theory of punishment, was only brought to bear against one sort of crime in the extensive penal code of the Laws. It remains to show how shame, and particularly the fragility of shame as a catalyst of social control, can help to explain both the attention Plato gives to the treatment of

290 For Hippolytus’s behavior as representative of 4th century religious controversies, see (Parker 2011), pp. 39-40. For a contrary claim that Euripides was in fact far more conservative in his attitude towards Greek religion than we have suggested see (Lefkowitz 2016), and pp. 136-137 for the Hippolytus.

133 atheists and the method he chose to accomplish their correction. In light of the crisis of shame that was acted out in the Hippolytus, we are finally in a position to understand the nexus of shame, punishment, and social control that provides the backdrop to Plato’s use of incarceration in the Laws.

1. Shame and political decline

The first section of this chapter focused on the way shame regulates the state of the soul. In

Plato, the psychological is often the political, and the Athenian stranger argues that the positive effects of shame do not only affect the individual, they redound on the entire polity. Correct apportionment of honor (timē) and dishonor are necessary “in order for the city to be preserved”

(697b). In the service of illustrating the effects of honor and dishonor, and particularly of honoring or dishonoring self-control,291 the Athenian Stranger pursues an excursus on the historical rivalry between two ancient states. The Persian state, in Plato’s stylized version, is an empire that cared for naught but material wealth.292 The Athenians, on the other hand, had “an ancient constitution [politeia]…and shame (aidōs) as a sort of mistress, though which [they] were willing to live as slaves to the ancient laws” (698b).

The Athenian Stranger goes on to retell the story of the Persian Wars familiar from

Herodotus’ Histories, albeit with a very different emphasis. Fear, and the fear-shame complex described in the account of the moral psychology given above, play a prominent role in the

Athenian strategy and victory. The overwhelming strength of the Persian empire supplies the

291 Sōphrosunē, the virtue in which Phaedra vowed to instruct Hippolytus.

292 Compare this to the multifaceted depictions of the Persians and their virtues in Aeschylus, Herodotus, and Xenophon.

134 ingredient of fear, and the memory of previous victories supplies the expectation (elpis) of victory, creating the ideal conditions for law-governed behavior: “Friendliness (philia) towards one another, the fear…though which they had been enslaved to the laws that were laid down, and the fear which we have called ‘shame’ (aidōs) in the earlier discussion…” (699c).293 The

Athenian has made more explicit what was only implied by the discussion of individual virtue.

The pro-social conditions for successful political life (friendship amongst one another, philia allēlōn) are constituted by aggregate psychic dispositions, especially the presence of shame.294

The history of shame in Athens has a particular significance for the project of legislation. For the Athenian Stranger, the years following the Persian wars were a period of sharp and unmistakable decline in the health of the Athenian polity. In one of the most striking passages in the Laws, Plato gives and account of social and political change that originates in cultural change, particularly with developments in music.295 This is not the place to explore that account as a whole, but the basic narrative is one of innovation, from “lawful music” (nomoi, a pun on the words for “law” and “tune”) to lawlessness, and from well-ordered performances on the stage to a “theatrocracy” where every groundling thought himself an able judge of what was good in the musical arts (701a). This democracy of taste led the people to become brash and confident

293 Friendliness (philia) is the same word used in the Protagoras (322c) to describe to pro-social bonds formed by justice and shame, suggesting that this passage shares a conceptual space with the discussion there.

294 If, in the Republic, the comparison between the soul of the individual and the health of a polity is delivered as an analogy (a juxtaposition “side by side”, Rep. 435a), here, the relation between psychic states and political institutions is first and foremost a causal one, and no structural analogy is implied, or even necessary. See (Blössner 2007) for the limited causal nature of the City-State analogy in the Republic.

295 Developments, which, as Nietzsche knew, were particularly associated with Euripides. See M.L. West 1992, pp. 351-355. For Plato’s response, see ibid. pp. 369-72.

135 (thrasos) – and, as earlier the analysis of moral psychology would lead one to expect, this led them to be fearless (aphoboi), and finally “gave birth to shamelessness (anaischuntia, 701a)”.

The Athenian emphasizes this word, “shamelessness”, finding in it the beginning of a story socio-political decline that should serve as a cautionary tale to prospective legislators. The shamelessness of the “New Music” in the tragic theatre goes along with the establishment of

“liberty” (eleutheria). Freedom to voice opinions about art leads to a refusal to be obedient to the rulers. Political freedom leads to a desire for similar freedom within the family, and between elders and the young. Next come attempts to ignore the laws. Finally, the last stage of political decadence is atheism – a “disregard” (mē phrontizein) for oaths and pledges and anything divine

(701b). Plato is describing the same sort of atheism discussed in the tenth book of the Laws.

These Athenian atheists are even likened to the rebellious Titans, the mythological beings imprisoned by Zeus in Tartarus, the same name that Plato gives to one of his own prison- buildings (904d, see above, Chapter Two).

The two roles played by shame in the Laws are not unrelated – the first involves the place of shame in the political psychology of the individual, that is, the way that the fear of shame can be a tool for law-following behavior. The second describes the breakdown of this fear-shame relationship on the level of a city, and over a broader background of generational change. It is this second, “historical” face of shame which finally suggests an answer to the problem posed at the beginning of the chapter. Atheism is the final stage of a terminal disease in the polity, a disease whose first symptom and chief cause is a deficiency in shame.

2. Atheism, oaths, and the prison A. The decline of the oath

136 The explicit danger of social disorder due to religious heterodoxy and the devaluation of shame (as presented by the Athenian in his history of Athens) should put us in mind of the

Hippolytus. Atheism in the ancient world was, not, it will be recalled, only, or even mostly, a term for those who did not believe the gods to exist. The Laws categorizes both deists and traditionalists (like Hippolytus) as dangerous schismatics on par with materialists (885b). The political theory of the Laws cannot allow for any diversity of belief about the gods and their worship – to do so would be to risk the sort of social rupture portrayed to such devastating effect by Euripides.

The Hippolytus presents a tragic world where consensus around the worship of the gods and consensus around shameful behavior break down simultaneously. Plato’s Laws tries to present a polity where such a breakdown would be difficult, if not impossible. It is easy to see how, from

Plato’s perspective, shame is necessary for social control, and even how atheism corresponds to an increase in social license connected with the breakdown of shame. The final challenge of this chapter is to show how and why Plato thought the prison to be the appropriate response to the atheistic threat to the political order.

In order to understand the practical response to the threat of atheism, it is important to understand more about the social mechanisms that atheism destroys – oaths (horkoi) and pledges

(pistes, Laws 701b). Oaths had any number of uses in classical Greece, from the political, to the legal and the diplomatic.296 Jurors and sometimes litigants swore oaths, entire cities trusted their fates to oaths tied to treaties, and many political offices, at least in Athens, required oaths upon

296 For an overview of these uses, see the articles in (Sommerstein and Fletcher 2008).

137 assuming office.297 Whether or not they were “a foundational safeguard of Greek society,”298 oaths were certainly a ubiquitous presence in daily life, and Plato himself makes varied use of them in the Laws – imposing oaths on voters, judges, and in various civil procedures.299 In opposition to current Athenian custom, the Laws does not, however, permit oaths in the market place or, indeed, in a court of law. This seems to be because, to put it simply, Plato, or the

Athenian Stranger, does not believe oaths work – at least not when the stakes are high.

As some readers have noted, this is due to the weakness of oaths when arrayed against the possibility of gain, financial or legal (kerdos, cf. 949a).300 Plato himself, however, frames the

Athenian’s worries about oaths in explicitly religious terms. Oaths were invented at a time when the mythical judge Rhadamanthus “knew that men were quite sure the gods existed.”301 The

Athenian contrasts this with the polymorphous atheism that is rife “nowadays” and observes that

“the art of Rhadamanthus may no longer be appropriate” (948c).302

The decline of the oath in the face of unbelief was something of a trope in 5th century Greek thought. Writing sometime in the first half of the 5th century, Xenophanes of Colophon claimed

“that the same challenge [to an oath] is not equal for impious man [asebēs] in comparison with a

297 For the legal oaths of jurors and litigants, see (Michael Gagarin 2008) and (Mirhady 2008), for oaths in political life (Rhodes 2008)

298 Maclachlan in (Sommerstein and Fletcher 2008) p. 91.

299 See Laws 948e-949a, 936e, 954a and elsewhere.

300 See (Sommerstein and Torrance 2014) pp. 389-90 and (Morrow 1960), pp. 284-5, 290.

301 948b4. Alternatively, “believed gods to exist manifestly”. See (England 1921), ad loc.

302 It is worth noting Rhadamanthus’ prominence in the Laws. He appears on the very first page of the Laws, practically in its first period, as an “exceedingly just” judge (624b), and his character is discussed at length (318d- 320c) by the interlocutors in the pseudo-Platonic Minos (which wants to be understood as an introduction to the Laws).

138 pious man, but rather like a strong man challenging a weak man either to hit or be hit.”303

Because the punishment for breaking an oath is divine justice, atheists have little reason to adhere to their word – and even considering breaking an oath might be reasonable evidence of impiety. On the testimony of Aristotle, Euripides was himself accused of being impious (asebēs) for having penned Hippolytus’ claim that “my tongue swore but my mind remains unsworn” (l.

612, a line also mocked mercilessly by Aristophanes).304

As this chapter’s reading of the Hippolytus suggests, it is not only the lack of fear around divine vengeance that threatens the status of the oath. The loss of a stable consensus around religious ritual is equally decisive. Hippolytus’ oath of silence to the nurse about Phaedra’s passion, which (pace Aristophanes’ jibes) he kept at tremendous cost to himself, is one of the play’s most biting ironic devices – it literalizes the way in which Hippolytus’ extreme religious devotion leads to his death. That oath’s pair, in the play’s chiasmic plan, is Theseus’ refusal to allow Hippolytus to swear or pledge his innocence. This almost irrational refusal to grant

Hippolytus the normal procedures of proof and reliability (a refusal for which Theseus is chastised by Artemis herself) is the clearest example of the tragic breakdown of shared understanding that Hippolytus’ practices have caused.305

Plato takes the obvious difficulties around oaths and draws a broader lesson from them. He approximates that “nearly half” of citizens would perjure themselves, given the chance (948de).

“Since, therefore, as the opinions among men concerning the gods have changed, it is necessary

303 DK Testimonium A14, Lesher’s translation in (Xenophanes and Lesher 1992) p. 201. The sentiment, which survives as a quote in the Rhetoric, 1377a, must still have been current in Aristotle’s time.

304 Rhetoric 1416a. Compare to the story of Glaucus the Spartan at Herodotus 6.86. Aristophanes quotes the line three times, Thes. 275; Ran. 101, 1471.

305 For oaths and curses in the Hippolytus see (Segal 1972).

139 to change the laws.”306 Atheism is not just a dangerous phenomenon; it is a specifically contemporary one. The causes of atheism, which are “the views of our modern (neōn) scientists”

(886d2-3),307 are inescapable, they are the views of the age. Atheism may have first appeared in

Athens (886b), but Plato sees it as a problem localized not just in space but in time; it is an indelibly “contemporary” phenomenon – the “outrage of the young” (hubris tōn neōn). Modern people, those who live now (ta nun), are always suspicious of myth, believing nothing on account of their supposed wisdom (dia sophian), as opposed to men of old, who believed the things said about gods and humans and lived accordingly (679c).308 “The young”, or “those nowadays,” refers to age, but also to a generational divide. Indeed, atheism may be said to be the defining characteristic of the text’s thematic “generational problem”.309 These student radicals do not seem as if they will grow out of their error. They might even presage an entire cultural shift.310 Given this danger, it is not enough to take away the opportunity to perjure one’s self by avoiding oaths (or to tinker with any of the other legal or moral institutions threatened by the decline of shame). It is necessary utterly uproot the cause of this socially destabilizing force – atheism itself. That is the aim of the prison.

306 948c7-d3, Once again, cf. 679c, where it is precisely the inquisitiveness of contemporary men who are always “suspecting falsehood” that sets them apart from the piety of the founding generation.

307 Bury’s translation of σοφοί as “scientists” is exactly right. To call them wise men would be misleading. To call them sophists, while correct, would be saying too much. See (Solmsen 1942) and (Sedley 2013) for surmises as to the actual identity of this generation of Athenian atheists.

308 “Modern man” is said to have Atheistic tendencies at a few different points, including 679c, 886b-d, and 948c. For an interesting (if late) interpretation of this generational struggle, see Plutarch, Nicias 23. In Plutarch’s telling, Plato’s contribution was decisive in reversing the dangerous trend of atheism.

309 (Görgemanns 1960), p. 23.

310 See (Benardete 2000), p., 296, esp. n.11.

140 B. Atheism and punishment

The central question of this chapter still remains unanswered. The decline of shame and the loosening of shared rituals like oaths are society-wide problems linked to broad historical trends, but the prison is designed for only a narrow class of criminal. To solve this seeming incongruity, it is necessary to incorporate the moral psychology of crime discussed in Chapter

Two with the moral psychology of shame explored above.

Shame is a form of “expectation” about the future (644cd). Specifically, it is a fear of future pain. Shamelessness, psychologically, is fearlessness (cf. 701a). Without this fear, the checks on behavior once created by social rebuke and religious censure are no longer binding. In most cases, then, it would seem that shame can be induced by the prudent application of pain

(recall the phrase “leading the citizens into fear,” 647c). As has been observed, the legal system of the Laws exists on a broad educative spectrum from the ex ante teaching done by the persuasive prologues to the post facto improvement promised by punishment. The shamelessness of the masses will be constrained by a combination of socially distributed blame (encoded into the laws rather than entrusted to tradition or chance) and appropriate punishment.

Most punishments, in fact, all punishments with the exception of incarceration, act on the imbalance between the hedonic psychic elements (passion and desire, in the language of Laws

864a, pleasure and expectation in the language of Laws 644b) and the calculative psychic element (logismos).311 The response to almost every crime in the state of the Laws is to apply a measure of pain such that the soul of the criminal will once again be pliable and receptive to

311 For an explanation of this psychology, see above, Chapter Two.

141 socialization, especially, it can now be said, to praise and blame.312 Atheists, however, do not have a problem with pleasure, pain, or passion. The Athenian cautions his interlocutors that they are criminals unlike any ever encountered in Crete or Sparta. They differ from normative citizens not because of “incontinence in respect to pleasures and desires” but because of “a sort of very serious foolishness [amathia]” (886ab). Their deficiency in shame is due solely to intellectual error.313

Foolishness alone does not lead to shameless behavior in the atheists unless it is combined with some additional sensual corruption (as happens in the case of “devious” atheists who are indeed “incontinent regarding pleasure and pain” 908bc). The reason the Athenian fears atheists thus has less to do with their actions than with their intellectual influence.314 Even the uncorrupted atheist ““would be full of bold language [parrhesia] about the gods both at sacrifices and oaths (horkoi) and, and as he laughs at the others, makes others of this sort, as long as he goes unpunished” (908c6-d1). It is this diversity in belief that, as the Hippolytus suggested, is the greatest threat to the social order of shame (and social practices like oaths). Atheists are not directly a threat to self-control (sōphrosunē) and the other political virtues at the heart of the

Laws, rather, their intellectual commitments are a threat to the underlying conditions for political virtues, especially shame. Like Phaedra against Hippolytus, Plato’s Athenian stranger takes it

312 For crimes and the economy of pleasures and pains, see Laws 864a, and the explanations above.

313 This fact links the atheists (and the Laws) to the famous thesis of Socratic intellectualism. See above, Chapter Two, for a discussion and literature.

314 886a. There is a characteristically complex bit of Platonic wordplay here. The Athenian “fears” Atheists (phoboumai) but goes out of his way to clarify that he does not respect (aidoumai) them. This both underlines the connection between fear phobos and shame (aidos) and emphasizes that the atheists stand outside of normal shame relations.

142 upon himself to teach the atheists that their “expectations… concerning the higher good” are incorrect (cf. 864b).315

The position of the prison in the Laws is now more fully in view. The general law code

(including the penal code) is meant to prevent (and even reverse) the threat of shamelessness that lead to the decay of the Athenian polity. Plato does this by making use of an important, but little- noticed feature of Greek ethical life – the simultaneous role of shame in applying social coercion while simultaneously contributing to the internal sense of the agent’s identity. In order for this shame-mechanism to work, however, as the case of Callicles demonstrated in the Gorgias and the case of Hippolytus showed in Euripides’ tragedy, certain prerequisites are necessary. The citizens must not, like Hippolytus, have their own ideas about the gods or their worship (hence, in addition to the discussion of atheists, the ban on private cults at 910b-d). And similarly, they can’t have divergent ideas about virtue, and the rational of nature of ethics (like Callicles or

Thrasymachus in the Republic).316 Plato introduces incarceration to correct these intellectual challenges to social control.317

Conclusion: The prison of the Laws as an institution of correction

When preconceptions about the “greatness” of the Republic are laid aside, it becomes clear that the Laws is not competing with Plato’s masterwork, it is presenting an altogether

315 Note that this form of expectation (elpis) is distinct from the “expectation about the future” connected to the moral psychology of shame discussed above (644b).

316 Cf. 967e. The direct connection between believing in rational theology and rational ethical theory is beyond the scope of the current study, but is addressed in (Abolafia 2015).

317 The memorable “immoralists” of Plato’s other dialogues become, in the Laws anonymous atheists. One reason for this may be analytic precision – the Laws recognizes that citizens may hold politically dangerous views without being ill-willed.

143 different way of doing political theory. Plato makes an appeal neither to the ideal forms behind various concepts as in the Republic, nor does he pursue other, language-oriented methods of conceptual analysis, as in the Statesman. Rather, the Laws abandons the pursuit of the concept, at least temporarily, in favor of the institution. The Athenian Stranger is repeatedly willing to put up with the intellectual limitations of his interlocutors, and even to humor the philosophically errant “ordinary language” in which they think. The aim of the dialectic in the Laws is not to achieve perfect clarity about concepts, it is to discover useful images for making laws.

This is not the place to fully engage with the vexed (and important) question of just what laws are.318 It is tempting to compare the imperfect, “imitative” practice of making laws to the ideal decisions of a ruler with perfect knowledge (Plato himself does this in the Statesman).319

But the investigation of the prison in the preceding chapters has suggested one important role for law, inflexible and mimetic though it may be. It is through law that constitutions, practices, what we have termed institutions come to be. Neither the Republic nor the Statesman, even at those moments when they discuss or imagine customary practices, ever takes up the question of

“humanly devised constraints that structure political, economic and social interaction,” to cite an influential definition of institutions.320 The Laws, attuned as it is to the very real constraints of history, geography, and audience, turns out to be an institutionalist text par excellence.

318 The author of the pseudo-Platonic Minos (written, perhaps, as an introduction to the Laws) took law to be “the discovery of what is” (315b), and many readers treat the Laws as, in effect, the beginning of the natural law tradition – an attempt to fuse the rational and the real ((Benardete 2000), other historical accounts of the natural law tradition. See also (T. H. Irwin 2010)).

319 See Statesman 293d-294a. The true politician issues commands that reflect the truth as it is. Law is a compromise that can only ever be an “imitation of the truth” that the person with true knowledge could pronounce about a given topic. Cf. Statesman 300c.

320 (North 1991), p. 97.

144 In this chapter we have approached the Laws less as a collection of imperfect arguments that support an authoritarian code, and more as a collection of statutes that, taken together, suggest an institutional order. The text’s anxieties, about historical change, the structure of human rationality and its imperfect connection to pleasures and pains – are matched by its solutions, educative institutions, formal and informal, for the young and re-educative institutions, formal and informal, for the old. There is no knot so tough in the crooked timber of the Greek citizen that the Athenian Stranger cannot not find some legal structure fit to sand it out.

Viewed from this aspect, incarceration becomes something like the characteristic institution of the Laws. The prison, with its regime of dialectic conducted by the nocturnal council, a regime meant to counteract the effects of atheism, is a paradigmatic example of the process of controlling human behavior from without while producing the conditions to convince from within. The sōphrontistērion, which will be dedicated to rehabilitation around disagreements about the most important questions of value, about the highest questions of good and bad, stands at the pinnacle of any number of other institutions in the Laws that aim to use a theory of human psychology to arrive at the successful (one might almost say efficient) constraint of behavior. The prison is an exceptionally clear case of confinement to achieve these ends, but one can see similar principles writ large in the state of the Laws. The Athenian all but bans foreign travel and severely limits visitors from outside (949e-950e). It would not be wrong to see the state, as a whole, as an institution of confinement and correction.

The Cretans never founded a colony in Magnesia and the prison of the Laws was never built. The socio-political problems that has seemed desperate during Plato’s lifetime were, with the arrival of the Alexander and end of independent poleis, as irrelevant as the political

145 institutions of the self-governing polis themselves.321 No wave of scientific atheists swept the

Greek world (perhaps, as Plutarch observes, because Plato himself had such a marked effect on the next generation of intellectuals), and even incarceration as an institution of democratic punishment (to whatever extent it had actually existed) faded away sometime during the

Macedonian hegemony. In closing this examination of Athenian imprisonment, it is worth asking to what extent Plato’s institute of correction was a dead-end, or, if it had an importance for the broader history of incarceration, just what that importance could have been.

There are limited historical traces of Plato’s prison. The Platonic vocabulary of confinement and rehabilitation was repurposed by Jewish and Christian authors to describe the pious isolation of ascetic communities and their teachers (an important story but one, unfortunately beyond the bounds of the current study).322 Less concrete, but no less important, is the prison’s position as part of the Laws’ unique form of institutional political theory.

Throughout the 19th and 20th centuries the Laws was dismissed as obscure, unenlightened, boring, or even non-Platonic. Prior to that, however, the dialogue was uniquely prized as a work that, in its understanding of a divinely ordered rational law, could be easily harmonized with the strictures of scripture, especially the legal codes of the old testament.323

If the institution of correction as imagined in the Laws had an afterlife, it must have gone through these Christian readers. The next chapter will examine what one such reader made of the institutional proposals of the Laws, and particularly of the institutions of correction. This reader

321 Sommerstein makes the observation that, whatever Athenian fears about the decline of the oath may have been, Hellenistic rulers kept on demanding oaths and Hellenistic subjects kept on taking them. (Sommerstein and Torrance 2014) p. 393.

322 (Annas 2017) discusses the link between the Laws and Philo of Alexandria, but does not note that Philo is the only author in the ancient world to directly cite the passages on the prison from the Laws.

323 For the influence of the Laws on the Jewish and Christian divine law traditions, see (Hayes 2015).

146 clearly took to the idea of an isolated, law governed society, though he gave his version a name so famous that it has obscured just how much its plan owed to Plato’s Cretan constitution. This devoted reader of the Laws was Thomas More, the island was Utopia, and its ideas about correction, incarceration, and indeed institutions themselves were the most direct mode by which the Platonic conception of the prison made its way into modernity.

147 Chapter Four: Incarceration in Thomas More’s Utopia

This chapter leaves behind the Greeks of Classical Athens for the Greek-lovers (graeculi) of the Northern Renaissance. Although much of interest and import for the philosophical history of incarceration happened between the fall of democratic Athens and the publication of Thomas

More’s Utopia, that material will not be directly treated by this dissertation.324 We allow ourselves this considerable chronological leap in part due to the limitations of scope, but largely because of the special relationship between More’s text, which we will now take up, and the ancient texts that we have just put down. More was not only an exceptional and inventive reader of Plato, he was, this chapter will argue, one of the first readers since antiquity to grasp the importance of what we have described as “institutions of correction” for secular life. If, as we suggested in Chapter Three, an institution of correction is one that combines a theory of human behavior with a technique for controlling that behavior in the context of physical confinement, then More’s recommendation of penal servitude as a punishment should be understood as a paradigmatic example of just such an institution.

In order to make the case for Utopia as an important text in the transmission of institutions of correction from Plato to modernity, several steps are necessary. This chapter will begin by briefly reviewing some relevant details of More’s Platonism and the thematic (and textual) relationship between Utopia and Plato’s Laws, particularly the emphasis on institutional structures in both texts. Next, it will make the case for punishment as an institution of correction in Utopia, focusing on both the connection between education and behavior in Utopia, and punishment’s

324 For historical studies of incarceration in the late antique and Christian worlds see (Hillner 2015). Thematically, this period includes the adoption of Platonic theories and vocabularies of punishment into the Christian, and more specifically monastic traditions. The influence of monasticism on theories of penal incarceration will be touched on below.

148 relation to More’s hedonistic theory of moral psychology. Lastly it will examine the precise mechanism by which More’s institution of correction acts on the psyche - forced labor. The attention and approbation that More gives to hard work both differentiates him from his Greek predecessors and points forward, toward the tradition of incarcerated labor that would develop in

Europe over the next five hundred years.

I. Why More – context and form.

1. Plato as contemporary

Thomas More’s little “golden notebook” published in late 1516 both introduced the word

“utopia” to the world, and provided the template for the hundreds of exoticized ideal societies that were to follow over the next five-hundred years..325 This is not to say that Utopia had no forerunners – indeed, the text of Utopia is insistently aware of earlier attempts to imagine ideal forms of government (most significantly in the work of Plato and Aristotle), and earlier accounts of travel to foreign lands, imagined and semi-imagined, from the ancient world and More’s own time (the text makes use of Lucian’s True History and references reports of Vespucci’s voyages).

It is precisely this admixture of novelty and continuity that makes Utopia so fruitful for tracing out a pivotal moment in the history of punishment and incarceration.

325 The scholarly literature on More and Utopia is copious. For general bibliographic introductions see (Davis 2010); (Logan 1983); (Baker-Smith 1991), the introduction to (More 1995) and the collection of articles in (Sylvester and Marc’hadour 1977) .

The word for “without a place” in Greek is atopos. More’s avoidance of this word, with its established connotations of strangeness and paradox suggest his desire for something new. The naming of Utopia belongs to a late stage in its composition, as in a letter to Erasmus More still refers to it by a Latin name - Nusquama. For this and other details see the introduction to (More 1965).

149 In More’s case, an awareness of the contemporary situation does not obviate the significance of Plato in his writing, rather, it enhances it. More’s role as a pioneer in the revival of Greek learning in Northern Europe is well known.326 Along with his friend and colleague Desiderius

Erasmus, More not only engaged in polemic around the importance of Greek thought, he was actively engaged in making Greek literature accessible to the Latinate world.327 If, as some have argued, the Latinity of early decades of the Renaissance carried with it a series of political and philosophical propositions about freedom and republican mixed-government, it should not surprise us that More’s outspoken enthusiasm for Greek wisdom also had a distinct philosophical valence.328

This contextual background matches up with several passages in Utopia that develop the theme of Greek over Latin, and the supremacy of Plato in particular. In his prefatory letter More writes of the dialogue’s main interlocutor, Raphael Hythloday, that he “is a man not so well versed in

Latin as in Greek.”329 Hythloday himself is described having made journeys like those of Plato, and very his name and demeanor have Platonic resonances.330 Plato is described by the character

More (henceforth “Morus”) as Hythloday’s “friend,” towards whom the customs of Utopia made

326 Aside from the general descriptions in (Trevor-Roper 1979) and (Skinner 2002a) p. 193ff., see (Trapp 1991).

327 The “Letter to Dorp,” perhaps More’s most important piece of Grecophile humanist polemic, was written at around the same time as Utopia, see (More 1986). His writing previous to Utopia had involved translations of the satirist Lucian and some poetic epigrams, see (More 1974).

328 For Republican liberty, see (Skinner 2002b) pp. 213-234. For the Hellenists’ repost, (E. Nelson 2001).

329 p. 31. Citations to Utopia will refer to page number in (More 1995). For the most part, I have relied on the translation and Latin text there, with occasional emendations, and the editorial notes have been a great help.

330 p. 43-45. (Baker-Smith 1991) p. 89 and (E. Nelson 2001), p. 891 suggest that Hythloday’s own name is a Platonic reference to Socrates as thinker whom the ignorance decry as a peddler of nonsense (huthlos, cf. Rep 336d). Whether or not that is so, many of his sentiments, such as that “well and wisely trained citizens you will hardly find anywhere”, are clearly Socratic, as is his unkempt appearance.

150 Hythloday more “sympathetic.”331 Almost all the texts given to the Utopians are Greek philosophy, history, and grammar (including “most” of Plato), and More’s earliest readers (his humanist friends) found frequent occasion to reference the relationship between More’s text and Plato

(whether More had “outdone” and “gone far beyond” Plato or merely confirmed his theories was open to debate).332

Both More’s surroundings and the comments made in Utopia’s text and paratexts suggest that as More was drafting the book, the treatment of Plato was foremost in his own mind, as he knew it would be in the minds of his intended readers. There is another, material, reason to highlight

More’s engagement with Plato’s text – the new availability of the corpus Platonicum in the editio maior of Aldus (Venice, 1513). Aside from what may be an indirect reference to the edition in

Utopia,333 there is some reason to believe that More’s use of Plato itself carries traces of the Greek text.334 More was thus among the first modern political theorists to directly interact with Plato in the latter’s own language.335

If an insistence on thematic continuity between Plato and More still looks suspiciously like philosophia perennis, one rough contemporary parallel case may help clarify the practical context for More’s adoption of Plato. Across the channel in the Netherlands, the burgher-

331 pp. 81, 101.

332 See Giles’ poem and letter, pp. 19, and 25, and Busleyden’s letter to More, p. 253.

333 The books “in Aldine letters” gifted to the Utopians, p. 183

334 For a convincing argument that More did not rely on the Latin of Ficino, see (Kristeller 1980), p. 10. See also (Baker-Smith 1994), p. 94 who muses the entire project may have been inspired by the presence of the Aldine Plato.

335 Erasmus, who was slightly older, was closer to Ficino’s neo-Platonic interpretive tradition. See (Baker-Smith 1994). More, who unlike his older colleagues Colet, Grocyn and Erasmus had not made the trip to Italy, took as his model Pico della Mirandola’s eclecticism, which encouraged him to use Plato (and other classical texts) for their particular strengths, rather than to integrate them into a philosophic whole. This applied to More’s use of Epicurus and Aristotle as well. See (E. Surtz 1956); (T. I. White 1982) and (T. I. White 1976).

151 reformers and “leaders of opinion” who were responsible for the earliest efforts at penal incarceration on the Continent were themselves also deeply steeped in the classics. In

Amsterdam and Leiden, as in London, humanism and politics went hand in hand. A passage from Seneca was inscribed over the lintel of one early Dutch “house of correction,” and the language of reform, of “the right treatment” for wrongdoing (language which can, perhaps, be traced to Plato’s Gorgias) was common currency.336 Across the northern Renaissance, the texts of the classical curriculum were seen as tools to be applied directly to the problems of urbanization and the end of the feudal order.

The idea of Utopia as a text that is self-aware of its historical moment may seem surprising, giving that Utopias are often said to occur not only in “no place” but in “no time” as well.

Guillaume Budé said as much when he proposed “Udepotia” (not-ever) as an alternate name for

Utopia, and Judith Shklar has suggested something similar, accusing utopias of operating optimistically “outside of history.”337 More’s Utopia, however, is anything but ahistorical. It was inspired by a particular moment in the development of European letters, and it expressly addressed itself to a select readership at the avant-garde of that moment. More himself was deeply conscious of the temporal aspect of human society and its relation to his text. He even stitched into the fabric of the book at least two clues hinting at the ambiguous link between the

Utopian moment and the classical past.

In a justly-celebrated article, R. J. Schoek demonstrated that the date given for the founding of

Utopia, 1760 years before the dramatic date of the dialogue, is a refence to reign of the Spartan

336 (Sellin 1944), pp. 12-14.

337 (More 1995), p. 13, (Shklar 1967), p. 107.

152 king Agis IV in 244 BC, an ambitious reformer who failed to carry out a planned redistribution of property among the Lacedemonians. As with all such details in Utopia, the meaning of this reference is equivocal, but it clearly situates More’s literary work alongside the historical possibilities of reform in the ancient world.338 The only other date mentioned in the island’s history is the wreckage of a ship of Romans and Egyptians on the coast of Utopia “some twelve hundred years ago,” meaning around the year 316 A.D.339 More was surely thinking of the period around the Battle of the Milvian Bridge in 312, which, along with associated events, eventually led

Constantine to adopt Christianity as the imperial religion. This means that the shipwreck, and the form of Utopian wisdom that More is using it to illustrate, happened at more or less the last moment of uncontaminated pagan culture in the Roman world. More wanted to stress an unmediated relationship between the Utopians and the non-Christian past. This evidence, internal and external, suggests that a particular sort of continuity between Plato’s thought and More’s work is not only plausible – it is essential for understanding what More himself intended to do in his project.340

Before examining the traces of the Platonic tradition in punishing as they are visible in More, a few words are necessary about how the current study will approach the literary and philosophical character of what is surely one of the slipperiest texts in the political-theoretical canon. As the radically divergent scholarly approaches to the text over the last hundred years attest, More’s insistent irony and careful use of the dialogic form can lead to opposing (and

338 See p. 121. (Schoeck 1956) and (E. Nelson 2001) both read the reference as fundamentally ironic and deflationary. The other way to read the passage is as a counterfactual challenge – what if Agis had succeeded?

339 p. 107

340 This is not to say that More’s relationship with Plato actually was unmediated. Skinner and others have shown the dependence of the Northern Renaissance on the earlier scholarship of the Italians. See (Skinner 1978). More himself was not a “Platonist” but rather, like his hero Pico, something of an eclectic. Cf. (T. I. White 1982) p. 332.

153 equally plausible) interpretations of almost every aspect of Utopia.341 In making a limited case for Utopia’s role in the development of institutions of correction in the history of political thought, this chapter will largely sidestep the most difficult of these questions. The passages that most interest us all come from the mouth of Raphael Hythloday, who, even if he is not More’s mouthpiece, is certainly, as we have suggested, a creation with clear and consistent Platonic tendencies. As in the Platonic and Ciceronian dialogues that served as More’s model, the major characters, even when they disagree, can present plausible arguments and defend positions that the author finds important, even without his endorsement.342 The remainder of this chapter will be devoted to the analysis of one such “plausible position,” one that perfectly illustrates the dual nature of More’s adaptation of classical texts for his own novel purposes. The classical text in question is first and foremost Plato’s Laws, and his purpose, as we will see, is the design of an institution to correct wayward behavior in the idealized state of the Utopians.

341 More than most books, Utopia has produced highly polarized readings. One set of interpretations tries to extract a political teaching directly from More text. After Marx inaugurated the category of “utopian socialism,” later socialists tried to assimilate More’s apparent approbation for a property-less society into the triumphalist history of communism, while German nationalists saw in More an argument for brutal British imperial expansion, avant la lettre. Partly in response to this radicalizing tendency, a conservative, often Catholic, anti-political school of interpretation soon developed (More’s canonization in 1935 surely helped this process along). These readers took the line that the absurdity of More’s solutions, combined with the sharpness of his critical wit, were meant to leave the reader in a state of bemused uncertainty about what should be done, or, perhaps even turn her back to older forms of medieval collectivism. A third school of interpretation reads More first and foremost as a humanist, a scholar and man of letters. This approach, which attempts to understand More against the background of humanistic tropes, genres, and particular debates, has proved the surest method to getting a firm grip on the details of More’s text. Even so, the reader of Utopia is left with the fundamental ambiguity of the dialogic method, and the several traps that More left for even his sharpest readers. It is all well and good to show, as Hexter and others have convincingly done, that More expresses approbation for forms of holding property in common elsewhere, and to conclude that the opinions of Hythloday were sincerely held, or at taken least very seriously, by More himself.. It is another to say whether a reference, such as one we have seen, to a Spartan king who failed is cautionary or laudatory. For a general overview of those approaches, see (W. Nelson 1968). The third approach, inaugurated by (Hexter 1952), is closest to the frame of this chapter.

342 This has been amply explored above, but for what was a closer stylistic influence on More’s literary Latin and sense of the dialogue form, see Cic. Off. (discussed below), and, for controversial opinions, his Nat. D.

154 II. More’s institutions of correction

1. Platonic strains in Utopia.

Much has been written about the reception of Plato in More’s Utopia.343 The most natural comparison, and the one that has flowed most easily from scholarly pens, is between the communal federation of cities on More’s island and the communistic polity of Plato’s

Republic.344 It is true that several aspects of Utopia refer to Plato’s masterwork. Aside from the property-less society of the Utopians (which, unlike that of the Republic, does not involve the dissolution of the nuclear family), there is the adoption of metaphors such as “drones” for dysfunctional citizens and “disease” for political corruption in the city.345 But despite the efforts of readers to see in Utopia a “new Republic,” there are hints that whatever the influence of that work, More intended his Utopia to function rather differently from Plato’s masterpiece.346

Utopia’s direct quotations of the Republic both come during the so-called “dialogue of counsel,” where Morus and Hythloday debate the merits of intellectuals giving advice to princes.

Morus has recourse to Plato’s idea that “until philosophers rule as kings or those who are now

343 (T. I. White 1982) has the best general account. The current discussion will focus on the Republic and Laws because of their relevance to political thought. Also present in the text, however, are references to the Timaeus and Critias, which have received very little attention from scholars (with some exceptions, see (Logan 1983) p. 104 on the relation to the Critias and an extensive discussion of other Platonic debts.). The Critias was clearly in More’s mind as he drafted Utopia, as a connection between Plato and the discoveries of the New World was, at the time, obvious and uncontroversial. As late as 1522 Alessandro Geraldini could assume that the natives he had seen in the Caribbean were relatives of Plato’s Atlanteans, and the introductory materials to the Aldine edition of Plato even mention the New World in its dedication (see (Plato 1513) I.2). The geography of Utopia, and its connection to ancient wars, all suggest engagement with the Atlantis narrative in the Critias, while the use of war to illustrate the excellence of the Utopian society is reminiscent of the Timaeus, (43aff).

344 See (T. I. White 1982), p. 329n1 for a list of culprits. In political theory there has been a particular tendency, especially among students of Leo Strauss, to pursue this connection. See, e.g. (Opanasets 1989), (Steintrager 1969), and (Neumann 1966).

345 Cf. pp. 57, 105. Platonic language that also made its way into the broader early modern discourse on punishment. See (Sellin 1944), p. 11.

346 (Starnes 1990), and now (Keum 2017), pp. 105-127.

155 called kings and leading men genuinely and adequately philosophize…cities will have no rest from evils.”347 The placing of this sentiment in the mouth of the non-Platonic character of Morus suggests a certain distancing of the Republic from the Platonizing Hythloday. Indeed, Hythloday, in another direct quote, takes up an image from the Republic of a philosopher waiting out the storm of public life under the shelter of a wall. Hythloday does not note that this is a statement of

Plato’s concerning non-ideal society different from that of the Republic – and he pushes the rule of philosophers decisively to the sidelines.348

For Hythloday, the key to a happy state is not the rule of the wise, it is the rule of wise institutions (prudentissima instituta).349 Even the communism that seems so clearly to be a legacy of the Republic is, on closer inspection, rather un-Republican. Instead of the limited lifestyle of shared property, meals, and erotic relationships meant to shape the guardian class in the Republic, Hythloday’s account of the Utopians relates to a Plato who saw “that the one and only path to the public welfare lies through equal allocation of goods.”350 This wide-ranging communism is almost certainly a reference to the Laws, where Plato writes that “you find the ideal society and state…where the old saying ‘friends’ property is genuinely shared’ is put into practice as widely as possible throughout the entire state.”351 More had possibly been put in mind of the passage from the Laws by its use in the recently published (1515) edition of Erasmus’

347 Rep. 473c, cf. p. 83.

348 p. 101. Some have attempted to see in the educated “tranibors,” who are a sort of upper house in the Utopian government, a form of philosophical rule. Given the fact that the educated officials (cf. p.52) must co-rule with the uneducated syphogrants (cf. p. 48), this cannot be what More meant.

349 p. 100.

350 p. 103

351 Laws 738c, Saunders trans. In (Plato 1997).

156 Adages, where the first two proverbs are devoted to friendship as holding in common and friendship as radical equality, respectively.352

These direct citations of Plato come in Book One, which, since Hexter’s study, has generally been acknowledged have been written after most, if not all, of the second book was already completed.353 If Book One was written after Book Two, with the intention of sharpening and reemphasizing certain aspects of the Utopian society and their relevance for contemporary political life, this means that More decided to frame Hythloday’s travel narrative not only in a particularly Platonic way, but also in a way that was distinctly difference from the

“paradigmatic” design of the Republic.354 As More understood, the question of whether to join public life as an advisor makes the stakes of the description of Utopia rather different than they might otherwise be. The character “Morus” thinks of himself as a political realist, warning

Hythloday against “out-of-the-way speeches and “academic philosophy.”355 This forces

Hythloday to stress the difference between the “image” of the Republic and the “actual practice” of Utopia.356 Hythloday is not, as many suppose, an idealist to More’s realist. He is a political

352 See (Erasmus 1993), Adages 1 and 2, pp. 84-86. Each of the first two entries features citations from the Laws, suggesting that for Northern Renaissance humanists (as opposed to 20th century anglophone scholars), the Laws was as potent a source for Platonic political thought as the Republic, if not more so. For the Adages of Erasmus as a fundamental stimulus for the composition of Utopia see three excellent articles (Olin 1989), (Wootton 1998), and (Harris Sacks 2017).

353 See (Hexter 1952).

354 Both (Logan 1983) and (Starnes 1990) interpret the relation of the later Book One to the earlier Book Two as a prolegomenon. Starnes is also explicit about the critique of the Republic in Book One, but decides this means that Book Two must be an attempt to write a “New Republic” – an unnecessary interpretive leap. For the Republic as a paradeigma, see 592b, a passage, as we have seen, which was on More’s mind.

355 p. 95 “sermo tam insolens” and “philosophia scholastica” respectively.

356 p. 104-5. “imago” as opposed to “facere” A stress taken up in the “parerga”, where More insists in his letter to Gilles on the reality of the island (p. 31ff), and Giles repays him by claiming (in his anonymous poem) that what Plato only accomplished in speech, Utopus accomplished in fact (p. 19).

157 thinker dedicated to exploring the limits of what is actually possible, given the realities of human life.357 For this reason, it should not surprise us that Plato’s use of legal institutions to shape and reshape moral psychology in the Laws proved to be the most useful model for More’s “actual” island.

2. Institutionalism in Utopia

Before examining the text of Utopia more closely, it might be useful to briefly recapitulate what might have been meant by a “wise institution” in More’s time and from More’s text. In contemporary social science there are any number of ways to define or understand an institution.358 Similarly, the Latin words instituta and institutio and their derivatives have a varied set of meanings, with roots in both classical and patristic usage.359 Together, they appear more than forty times in Utopia. In the last pages of the work alone, institutum means variously

“plans of living” (instituta vitae), “healthy institutions” (salubribus institutis), and “custom or practice” (aliisque…eorum institutis).360

One very telling use comes in the work’s peroration. Here the narrator Morus notes of the

Utopians that the “chief foundation of their entire institutio” is communal living. And this “one thing alone” subverts everything that is true of normal states.361 Morus is echoing an analogous passage a few pages earlier from what may have been the peroration of the initial version or “Ur-

357 This attention to realities of human frailty may be connected to More’s lifelong interest in Augustine. Cf. (Davis 2010), p. 33, and below.

358 See (Hall and Taylor 1996).

359 For a complete list of institutum and its cognate terms in Utopia, see (Pawlowski and Wegemer 2011) pp. 42-43. For the broad classical usage of the Latin term, cf. the first page of Cicero’s Off. (“principles of philosophy”) and Lactantius’ Divine Institutes.

360 pp. 246-8. In this and following passages I have sometimes amended Logan and Adams’ translation.

361 p. 246 (quod maximum totius institutionis fundamentum est…qua una re…)

158 Utopia” (before the composition of Book One). There, reviewing the “form” of the Utopian commonwealth, it is Hythloday who focuses on the distinction between an economy of private wealth, which of necessity requires calculation (rationem censere) according to private interest, and a system where there is no private property, and therefore no private interest. The citizens themselves are not to be blamed for how they act (certe utrobique merito), for they are behaving in accordance with the dictates of whichever structure (forma) within which they find themselves.362

This passage, which would have had an even more prominent position in the initial version, provides a key statement of More’s attitude towards human behavior and how to change it. More assumes that citizens in every state calculate their own interests. It is the institutional structure of their environment, however, that determines what those interests are, and therefore what their behavior will actually be. Characteristically, More’s position is both entirely novel and grounded in the classical tradition. In some sense, More has adapted the Ciceronian project of combining useful (utile) conduct with good (bonum) behavior. Rather than considering this as a moral duty (officio), however, More points to the institutional context for encouraging the coincidence of personally productive and pro-social behavior.

In the terms of contemporary social science of institutions, More’s understanding of the

“structure” of the Utopian republic seems to be approach the “rational choice” understanding of institutions as formal structures that effect the calculations of agents around their interests.363 But despite the stress in these two passages on communism, there are a great number of less formal instituta in Utopia. Scholars who have noticed this institutional affinity between the Laws and

362 p. 240.

363 See (Hall and Taylor 1996), pp. 942-946.

159 Utopia have addressed a number of the structures that More borrows from Plato, including strictures around sexual relations, the system of government on the island, the limitation of travel and financial dealings with foreigners, and especially the crucial role that education and schooling play in socialization.364 As “culturalist” theorists of institutions would recognize, these symbols, practices, and moral frameworks also do the work of behavioral control on a level not easily assimilated to the process of strategic calculation.365 It is in the use of such diverse institutional and cultural tools to shape the decision matrix of the citizen that More seems closest to the institutionalism of Plato’s Laws.

Given the nature of the current study, this chapter will focus on what we referred to in

Chapter 3 as the “institutions of correction” in Utopia. The intimate link between shame, reform, and religious belief that undergirds the practice of punishment in the text of Utopia is both an example of the more general use of institutions to shape imperfect behavior, as can be seen elsewhere in the text, and a more particular case of the specific relationship we detected in the

Laws between penal institutions, moral psychology, and the achievement of a well-planned social order.

3. Correction and punishment in Utopia

It is at least plausible to suppose that More is working in an intentionally “institutionalist” mode in Utopia. It remains to show that his institutions fit the definition of “institutions of correction” laid out in Chapter Three. These are institutional forms concerned with the influence

364 First and foremost (T. I. White 1982). This kinship between Plato’s method of behavioral control in the Laws through education, marriage laws, foreign trade and religion has been noticed by a number of scholars including (E. Surtz 1957), p. 59, (Logan 1983) (in an extended discussion of parallels, pp. 198-202) and (Baker-Smith 1994), who links the discussion of the rationality of institutions in Utopia’s peroration to the rational prologues of the Laws.

365 (Hall and Taylor 1996), pp. 946-950.

160 or modification of human behavior through the application of a particular form of knowledge or technique. They are also linked conceptually, or actually, to physical confinement. It is characteristic of institutions of correction that they do not exist in isolation from the society in which they function, and elements of the system of confinement and technique of behavioral modification recur in the social world at different levels of magnitude. Each of these elements applies to More’s project in Utopia.

The first characteristic of institutions of correction is their relation to moral psychology.366 More does not directly cite Plato’s discussions of the soul, choice, and action

(though he does indirectly reference a passage of the Laws from a few lines before the “puppet metaphor”),367 but it is clear that he understood the importance of a plausible account of moral psychology in discussions of political forms. One of the longest sustained passages in the text is the discussion of the hedonistic moral philosophy that predominates among the Utopians.368 The main philosophical system on the island is a qualified Epicureanism. Qualified because, although its followers believe that pleasure is “all or the most important part of human happiness,” they insist on finding support for this conclusion in their religion “which is serious and strict, indeed

366 At the heart of the idea of the carceral institution as it emerged from Plato’s Laws in Chapter Three was the use of institutions in the broad sense, norms, rules, organizations and hierarchies, to interface with what was taken to be a plausible theory of human behavior. Using the image of the “puppet,” pulled about on strings that correspond to pleasures, pains, and passions, Plato tried to show how “law” could be a sort of “golden string,” shaping the movements of the puppet while considering its tendency to respond to the other strings. By placing an account of human behavior at the very beginning of the discussion of the Laws (and, indeed, at the beginning of the discussion of a particular institution, the symposium), Plato suggested that an institution that seeks a certain pro-social outcome needs to have a realistic understanding of the parts of the mind that govern choice, action, and the distinction between right and wrong.

367 p. 125n.

368 Scholars have noted the similarity between this oratorical defense of hedonism and Erasmus’ earlier encomium In Praise of Folly (E. Surtz 1957) pp. 9-11. Surtz also notes the influence of Valla’s De voluptate. For a recent overview of More’s views on pleasure and a measured discussion of the disagreement over their sincerity see (Wegemer 2017).

161 almost stern and forbidding.369 Without religion, the Utopians declare that “no one would be so stupid as not to feel that he should seek pleasure, regardless of right and wrong.”370 This

Epicureanism without atheism suggests that More is up to something more complex than merely recapitulating an eclectic mix of Hellenistic moral philosophy.

This passage provides, in a roundabout way,371 an account of moral psychology as it effects the ability of citizens to make decisions. The Utopians “think that reason [ratio] by itself is weak and defective in its efforts to investigate true happiness.”372 Religious principles must act as an “aid” to reason, in some way tempering the rational discovery that the major factor in human judgement is the calculation of greater and lesser pain. More’s account has predictably been called proto-Utilitarian, but parts of it, and not only the theistic part, are decidedly at odds with later pleasure-guided moral theories. According to Hythloday, the Utopians distinguish not only between the “higher” and “lower” pleasures, as J.S. Mill would later do, but also between

“genuine” and “false” pleasures.373 This stress on a standard of truth against which pleasures can be judged places the moral psychology of the Utopians somewhere between the Epicurean revival of the late renaissance and the much more ambivalent treatment of pleasure in Plato and

Aristotle.

369 p. 159, 161.

370 p. 161.

371 These passages are full of More’s frequent and remarkable use of litotes in Utopia, perhaps intended to lessen the effect of radical passages, or perhaps to destabilize the possibility of any straightforward reading. See (McCutcheon 1971).

372 p. 161.

373 p. 167, 173.

162 Plato, though by no means a hedonist, admits that pleasure is “especially human,” and refers more than once to the image of pleasure and pain as a marionette’s strings to describe the situation of “all mortal beings” bound up by pleasure and pain.374 Aristotle, with remarkably similar language (pleasure is “closely connected to our species”), also finds reason to admit pleasure into his analysis of moral psychology.375 Both are careful to distinguish between “true” and “false” pleasures (for Aristotle, the “natural” and “unnatural”), and for both, understanding pleasure is a necessary “prelude” to correctly designing the constitutional arrangement of the state.376 More’s Hylthoday, while withholding judgement on the truth of the Utopian theories, insists that “whatever their principles are, there is not a more excellent people or a happier commonwealth anywhere in the world.”377 Regardless of the truth of these propositions about pleasure, they are exceptionally useful for political philosophy. This is another example of how

More combines Platonic philosophical materials with a Ciceronian sense for the “utility” of specific practices.

The approbation of “true” pleasure also lies behind Utopia’s boldest statement on moral psychology, the peroration on pride mentioned above. Utopian institutions, which provide

“enough of what we really need” would long ago have been adopted everywhere “were it not for one single monster, the prime plague and begetter of all others – I mean Pride.”378 Pride is

374 Laws 732e-734d, cf. 644dff.

375 NE X.1, 1172a20, cf. NE VII.5, see (T. I. White 1976), pp. 651-3.

376 Prelude is Plato’s word at Laws, 734e. NE X begins with the observation that people educate the young “by steering them in the right direction with pleasure and pain” (1172a5) and ends with the suggestion that “Then perhaps as well a person who wishes to improve people…should try to develop a capacity for legislating” (1180b20).

377 p. 179

378 p. 245-247.

163 associated not only with wealth, but with the “empty pleasures (inanies voluptates)” of the nobility and those who exist to serve them.379 Pride is the epitome of all that is anti-social, corrosive, and dangerous for a state. If pleasure and pain are the currency in which the institutions of Utopia trade, pride is the central threat to their correct valuation. It perverts a central element of practical reasoning – “every man’s perception of where his true interest lies.”380 The moral psychology of social control in Utopia can thus be defined as the constraint of pride in politics through the judicious appeal to pleasure.

Those institutions particularly oriented towards behavior control – the correctional institutions of Utopia– aim at the inculcation of the pursuit of true pleasure (and the maintenance of self-interest, correctly construed). The sources of this and other attitudes (opiniones) of the

Utopians, Hylothoday says, is their general good breeding (educatio, in the sense of the German bildung or Greek paideia), as well as “instruction and good books.”381 The presence of education is a continuous and universal feature of the society. Not just those who will become scholars, but every child is introduced to “good literature (literis imbuuntur),”382 and exposure to learning is by no means limited to the young or to the classroom. Intellectual pursuits are said to be the most common pastime during hours of leisure, and morning lectures given by the scholarly class are both frequent and widely attended.383 The educational system is omnipresent in Utopia, so much so that Utopia itself could be said to be an educational institution (in its common meals and

379 p. 243.

380 p. 245.

381 p. 155.

382 Ibid.

383 p. 127.

164 morning lectures, it somewhat resembles More’s own almae matres – Oxford and Lincoln’s Inn).

The whole island is constantly indoctrinating itself, and no citizen is ever very far from some form of instruction.384

The arguments about pleasure and pain that Utopians read in their books and hear in their lectures are not, as we have seen, sufficient to guide rational behavior. Religion is the indispensable handmaiden of philosophy. Despite his later reputation for persecuting heretics with little remorse, More’s presentation of the Utopian religion is notable for its tolerance. What is dangerous in religion, according to the doctrine of Utopus, the mythical lawgiver of the country, is less any particular doctrine, than a propensity for troubling the social order through zealotry and extremism.385 Two dogmas are excluded from this ecumenical broad-mindedness – presumably the very doctrines necessary to buttress moral philosophy – the belief that “the soul perishes with the body” and that “the universe is ruled by blind chance, not divine providence.”386

The connection between an immortal soul and the regulation of true pleasure operates in two ways. The first is the confidence in posthumous reward and punishment (an inheritance of philosophical religion that would survive through Kant). The second is the Utopian belief in ancestral specters, whose presence “keeps them from any secret dishonorable deed.”387 Both of these beliefs involve the existence of external checks on human action. Even if a citizen has

384 (E. Surtz 1957), p. 78.

385 p. 223.

386 p. 225.

387 p. 227

165 somehow failed to be sufficiently socialized through education, the idea of ever-present surveillance – a watchful god and vigilant ghosts – will constrain her actions.388

This understanding of civil religion, and in particular the harsh treatment of psychic materialism and atheism, owes much to Plato’s preoccupations in the Laws, 389 and particularly to the Athenian Stanger’s claim that “no one who believes that the Gods exist according to the laws ever comes to do an impious deed nor says an unlawful word.’390 Given that from time to time heterodox views reemerge, however, More also prepares for the possibility that the institutions of indoctrination, education and religion, might break down. Consequently, even

Utopia will need a correctional system.

As in the Laws, punishment in Utopia is an important part of the system of institutions governing behavior. Out and out punishments are few but harsh, for the “excellent upbringing

(educatio)” and exceptional “moral training” given to citizens makes any crime almost already a case of recidivism.391 Only a handful of crimes receive an official punishment, usually enslavement (for adultery, assault, “heinous crimes,” religious intolerance, and repeated unauthorized travel)392 and, more rarely death (for recidivism among adulterers and other criminals or for treasonous conspiracy)393 or exile (again, for religious intolerance).394

388 (Greenblatt 1984) p. 50.

389 As was first noted by (Miles 1956). Even the identification of the god of the Utopians with the Sun and with Mithras (a deity associated with the cult of the Invincible Sun in the late Roman Empire) may be related to the account of religion in the Laws. See (Abolafia 2015).

390 Laws 885b4. See Abolafia, ibid., and (More 1965), p. 585.

391 p. 185, cf. p. 195. This too can be traced to the Laws (854e).

392 pp. 191, 193, 223, 145.

393 pp. 193,123.

394 p. 223.

166 Much more pervasive than any of these sentences is the exercise of an artificial “shame culture” similar to the one discussed above in Chapter Three.395 Throughout the text of Utopia, reputation and recognition act as the first line of correction for behavior. Privatizing tendencies and withdrawal from the community are “not thought proper,”396 it is “contemptable” to insult fools, and “ugly” to mock the disfigured.397 Even those crimes with set punishments also rely upon public disgrace. Premarital intercourse brings “public disgrace” on the entire family,398 the atheist is “entrusted with no offices…and universally regarded as low and torpid,”399 and travel without permission earns “contempt.”400 The overall impression is of a society that does not have many fixed penalties because it does not need them,401 and would just as soon use honor to encourage virtue as shame to punish its absence.402

Consonant with their hedonistic moral psychology, the theoretical background behind the

Utopians’ punishments is based on a sort of cost/benefit analysis considering both deterrent power and productivity. “Generally, the gravest crimes are punished with slavery, for they think this deters offenders” as much as capital punishment would, “and convict labor is more

395 My account of punishment owes much to Greenblatt’s incisive interpretation (Greenblatt 1984). The topic has been treated only rarely since then, for instance in the very flawed (Gleckman 2005). Gleckman’s lack of understanding of the historical context of penal servitude makes his argument nonsensical. For this context, see below.

396 p. 141.

397 p. 193

398 p. 189

399 p. 225.

400 p. 145.

401 Cf. p. 193.

402 p. 195.

167 beneficial to the commonwealth.”403 There is also the hint of a rehabilitative element to Utopian punishing. “When subdued by long hardships, if they show by their behavior that they regret the crime more than the punishment, their slavery is lightened or remitted altogether…”404

More evidence of a reformative aspect to More’s theory of punishment can be found in the treatment of heterodox beliefs. Anyone who denies the idea of reward and punishment in the next life, either because of outright atheism or some other sort of materialism, is, as mentioned above, shamed, but not punished (nullo adficiunt supplicio).405 In a passage that borrows very freely from the Laws,406 Hythloday says that rather than being forced to dissemble, unbelievers are encouraged to express their views “in the presence of priests and other important persons….For [the Utopians] are confident that in the end his madness (vesania) will yield to reason (ratio).”407 Here, More imports both the Platonic metaphor, crime as sickness, and the

Platonic cure – dialectic with experts.

If all we had of More’s text was Book Two of Utopia, it would be enough to conclude that education and punishment are closely related. The theoretical framework behind this relationship, which seems to contain a mixture of Ciceronian/utilitarian and Platonic/reformist future-directed tendencies, might, however, remain rather obscure. What does More really want from punishment, and does he have a convincing method by which to achieve his ends, or is this another example of philosophical “institution begging?” Importantly for the answers to these

403 p. 193.

404 Ibid.

405 p. 224.

406 907d-909d, analyzed in detail above in Chapter Two. This relationship was also noticed by (Miles 1956).

407 p. 224.

168 questions, Utopia contains not one account of punishment but two. In addition to the parsimonious penal code of the “best commonwealth,” More revisited the question of punishment in the work, though his second discussion appears first, in the set piece of the dialogue of counsel at Cardinal Morton’s house in Book One.

The conversation in front of Cardinal Morton is brought up by Hythloday in order to illustrate a point about role of the philosopher in politics. This was a contentious question for renaissance intellectuals, particularly for those who identified with the Platonic tradition.408

Instead of an abstract treatment of the problem, More chose to grapple with the challenge of

“counsel” through an examination of a few issues in which the views of philosophers differ from the instincts of most rulers and their advisory class. One of these issues is punishment.409

As would be the case repeatedly over the next two-hundred years, in the early 16th century England attempted to respond to rising petty crime through taking a freer hand in capital punishment.410 Hythloday, as he reports it to Morus, took issue with this approach. He told

Morton and his guests that capital punishment “goes beyond the call of justice (supra justum), and does not in any case contribute to the public good (usu publico).”411 In a formulation that is the mirror of Hythoday’s approbation for penal slavery in Book Two, the death penalty is not an effective deterrent, and too harsh in itself. The question of what “just” punishment means is answered by Hythloday’s choice of metaphor. “In this matter…[England and much of the world]

408 See (Harris Sacks 2017).

409 Punishment and the other issues, including expansionism and enclosure, are clearly related, but a fuller literary examination of Book One is beyond the scope of this chapter.

410 For later such efforts, see (Radzinowicz 1948), (Hay 1975), and the discussion of the Black Act in Chapter Five, below.

411 p. 56. This critique is also found in Starkey’s Dialogue, which may be echoing More on this point. See (More 1965), p. 484.

169 seem to imitate bad schoolmasters, who would rather whip their pupils than teach them.”412 More thus affirms that punishment is analogous to education, and should operate according to a similar logic. This is the very same comparison which, as we saw in Chapter One, first emerged in full in Plato’s Protagoras. Thus Platonic argument could govern punishment not only in Utopia, but out of it too, in the decidedly non-ideal conditions of Tudor England.

If in the discourse on Utopia Hythloday gives a picture of the psychic causes of crime, including pride and false pleasure, here his focus is on the social causes of crime – largely poverty, encouraged by an indolent nobility and insufficient attention to legal equity.413 Under such conditions, Hythloday argues, harsh punishment fails the classic Ciceronian test for moral action – it is neither just nor expedient. When people are badly socialized (educari), the community itself is in effect “first making them thieves and then punishing them for it[.]”414

Even in an imperfect society, Hythloday insists, punishment is merely an outgrowth of education. It can safely be said that the same combination between “utilitarian” considerations

(such as what punishment will most deter others, and how to prevent major crimes from being more attractive than minor ones) and reformative/educative concerns identified in Book Two exist in Book One as well. In this extended discussion, however, More gives his character the opportunity to give a rational for the technique of punishment itself – penal servitude.

Servitude as it existed in the late Renaissance world would not have been an appropriate educative punishment. This is why Hythloday recounts his acquaintance with a people called the

Polylerites who practice slavery differently (it is worth noting that it is at this very point, in

412 p. 57.

413 Tellingly, this is one of the only aspects of Utopia visible in More’s later, public career. See (Scarisbrick 1977), pp. 263-265.

414 p. 67

170 presenting an argument for penal slavery, that More first introduces the reader to the exotic world of Utopia and its neighbors). Their course of punishment consists of restitution to the victim, followed by hard labor on projects in the public good. Prisoners live in cells (cubiculi) at night, and their upkeep is paid for by taxes or charity. Private individuals can hire their service at a special rate. More calls this hard labor, and explicitly denies that it is a workhouse (ergastulum) because the work is done in public. Despite this denial, Hythloday reports on measures like uniforms, distinctive haircuts, and special badges (all of which will find a place in later literatures of incarceration).415 In this regime, “the aim of the punishment is to destroy vices and save men.”416 The rehabilitative nature of this system is vouchsafed by its low recidivism and the constant promise of pardon.417

His discussion of the Polylerites allows More to be both more explicit about the continuity between “training” and punishment, and to use punishment as a point of entry into the broader imaginative project of the world as it might be in Book Two. The Polylerites do not inhabit an undiscovered country, they are vassals of Persia (though they live in splendid isolation, much as Plato imagined the city of the Laws could exist on Crete). Unlike, Utopia, where perfect education makes punishment almost otiose, the Polylerite penal system is closer to what could exist in England or Europe. It is a form of education after the fact, a second-best solution. The lawyer who is arguing with Hythloday in front of the Cardinal scoffs that “such a system could never be established in England without putting the commonwealth in serious

415 p. 73

416 p. 75 As many since Hexter and Sturtz’s edition (More 1965) have noted, the rational of Polyleritean punishment, restitution, deterrence, and reform, owes much to the penology of the laws (862d-864e) discussed in Chapter Two.

417 Unlike Plato, More does not suggest anything approaching a fixed sentence.

171 peril.”418 The lawyer’s scoffing self-confidence is an invitation to the reader to ask what would have to be the case in order for “just punishment” to succeed in full. The answer to that question is Hythloday’s discourse on Utopia.

To return to the technique of punishment itself, penal servitude does what no other form of punishment can – it corrects behavior both justly and usefully. The usefulness of servitude is obvious – the labor power of the criminal is placed at the disposal of the state. What is “just” about this punishment seems to be its refusal to discard citizens based on their misdeeds (and based on their insufficient education). It makes “men necessarily become good”419 first, by giving them the opportunity to unlearn their bad habits – to “regret the crime more than the punishment,” that is, to demonstrate that their prudential calculation based on pleasure has changed. More envisions this institution as a civilized alternative to corporal and capital punishment as it existed in his own time. Some impoverished members of less fortunate societies, Hythloday reports, even prefer slavery in Utopia to freedom elsewhere (the principle of less-eligibility is culturally relative).420

Until this point, we have been at pains to emphasize the continuities between Plato’s theory of punishment and More’s “educational” account of penal servitude. Also important, however, are the significant differences. Plato developed a complex and extensive explanation for how corporal punishments could reorder the psychopathologies of some criminals while imprisonment worked for others. More is not as clear about the reason that penal servitude works

418 p. 75.

419 Ibid.

420 p. 187.

172 as a form of correction.421 He also seems almost indifferent to the scope of rehabilitation. It may take “the rest of their lives” for criminals to improve,422 or they may earn their release, and More seems to have little preference between the two options. This poses a challenge for our attempt to describe the complex of education and punishment in Utopia as an institution of correction. One of the essential distinctions between institutions of correction and other forms of social control is the claim that carceral institutions make about the fit between a technique of confinement and the desired behavioral outcome. In order to fully understand the technique of punishment in Utopia, it is necessary to turn to one of the other differences between More and Plato – the Englishman’s theory of labor.

4. Labor as a technique of punishment423

Labor is the essence of More’s penal technique – “apart from constant labor, [convicts’] lives are not uncomfortable”,424 but it is also essential to the entire project of Utopia. “The chief and almost the only business of the syphogrants [the lowest level of magistrate] is to…see to it that no one sits around in idleness, and to make sure that everyone works hard at his trade.”425

The social structure of Utopia prevents idleness in two senses. Large swaths of the social order in

England who, at least in More’s view, are not productive members of society (including women, the wealthy, and the indigent) have either been eliminated from or are made to work in Utopia.

421 It seems to be this indifference to precise mechanisms that Bentham criticized as typically “utopian” – see Chapter Five, below.

422 p. 75.

423 More’s contribution to the history of political economy, as with other aspects of his thought, has proved remarkably polarizing. For a good account, see (Park 1971) and, more recently, (Giglioni 2017).

424 p. 73.

425 p. 127.

173 This increased labor pool is complemented by a decreased number of goods produced (only those things consonant with the necessities of life and the “natural pleasures”). The result is a significant decrease in the number of hours required to produce the means of subsistence for all.426

The second reason that Utopia is free of idleness has to do with not with the inputs or outputs of the economy, but with productivity itself. “Because [the Utopians] live in the full view of all, they are bound to be either working at their usual trades or enjoying their leisure in a respectable way.”427 The value of surveillance for correct behavior, which is so crucial to the

Utopian religion, is revealed to have an economic function as well, and this laboring society in turn ensures social stability. The regime of production is meant to serve “the chief aim of [the

Utopians’] constitution” that “as far as public needs permit, all citizens should be free to withdraw as much time as possible from the service of the body and devote themselves to the freedom and culture of the mind.”428

III. The sources of rehabilitative penal servitude in More

1. The classical view of labor

Utopia’s institutions of correction are broadly consonant with their models in Plato’s Laws.

In both texts, punishment is just one element of a broad scheme of social education (paideia, educatio) that includes formal schooling, informal customs of shaming and honoring, and, in

426 p. 129-131.

427 p. 127.

428 p. 135.

174 extremis, legal sanction, whether corporal or carceral.429 In the Platonic institution of correction, it is not enough to have disciplinary techniques that claim to educate. There must be some moral logic that explains why a given punishment, whether whipping, jailing, or killing, fulfills the aims of making the criminal better, or at the very least deters others. If the Platonic debt that has been suggested is to hold, More’s affinity for penal servitude and the salutary effects of labor cannot merely be a response to the economic crises and vagrancy that plagued early modern

Europe. The usefulness of labor must address both the social and the individual causes of crime.

More suggests as much. Penal servitude is able to make men “necessarily become good,” preparing them to “make up for the damage they have done” and all but banishing the danger of recidivism.430

A reformative role for labor cannot be traced back to Plato or Aristotle. Plato famously equates working with one’s hands (cheirotechnia) with “baseness” (banausia);431 and according to the moral psychology of the Laws, “illiberal” labor is a sort of baseness that prevents the formation of a liberal character (ēthos eleutheron).432 Aristotle’s disdain for the effects of hard work on the soul are equally notorious: Those people whose function (ergon) is the use of the body are “naturally” slaves.433

There were some ancient thinkers who had a more measured attitude towards hard work. The

Cynic tradition, from Antisthenes and Diogenes through Dio Chrysostom, shows an appreciation

429 See Utopia, p. 185: The Utopians…deal more harshly with their own people…because they had an excellent education and best of moral training…

430 p. 75

431 Rep. 590c.

432 Laws 741e.

433 Politics, 1254b15ff.

175 for toil (ponos) as a training ground for virtue, and the Stoic school, especially as expressed in

Epictetus, viewed work as just another of the morally indifferent phenomena (adiaphora).434 On the whole, however, Roman political thought followed its Greek predecessors. Cicero’s distinction between the gentlemanly professions (liberales, medicine; architecture; teaching; trade on a grand scale, but especially and mostly agriculture) and the base or vulgar ones

(sordidi, everything else) is often taken to be paradigmatic of elite Roman attitudes towards work.435 For the Romans, it is precisely the “liberal arts” whose “care is virtue” and which “make a man good.”436 Labor is for the lowly.437

2. The origins of penal incarceration

Thomas More’s vision of reformative carceral slavery did not, then, emerge from the classical philosophers. It can, however, be traced at least in part to antiquity. By the first or second century of the Imperial era the ambiguous role of labor in customary Roman law began to coalesce into a series of related custodial punishments for low-status offenders.438 More, who trained as a lawyer, would have been familiar with the Roman codes and their various forms of

434 For the positive exceptions to the intellectual distrust of labor see (van den Hoven 1996), pp. 21-38.

435 Off. 1.150-2. The distinction, according to Seneca, can be traced to Posidonius, who distinguished four types of occupation. The “vulgar handicrafts are those which employ the hand and are occupied with the furnishing of life’s necessities, in which there is no pretense to charm or honor” (Sen. Ep. 88.21).

436 Sen. Ep. 88.23: “liberales…quibus curae virtus est” and 88.2: “virum bonum facerent.” Seneca himself is not sure whether the liberal arts alone can make a person good.

437 For an excellent treatment of the Roman views of work, labor, and improvement, especially those of Cicero, see (MacCormack 2002), as well as (Giardina 1996).

438 For the development of penal slavery in Roman law see (Burdon 1988). For the “dual system” of punishment that differentiated between high and low status criminals see (Garnsey 1970) Part II.

176 punishment and must certainly have read or known second hand about several forms of penal servitude used more or less widely in the later centuries of the Empire.439 These included sentencing ad metallum (to the mine) and ad opus publicum, or to public works.440 It is the later of these that More seems to have adapted for his Utopia.

Penal servitude on the island consists of constant work (in opera…perpetuo) while chained;441 and the more polished account of punishment among the Polylerites in Book One even makes use of the full phrase opus publicum.442 Perhaps order to distinguish this penalty from its sources, More is careful to emphasize a set of penological aims utterly foreign to the

Roman lawyers. His goals are purely Platonic. Incarcerated labor both deters offenders and benefits the republic (More emphasizes this penological utility, repeating it chiastically). It also modifies the behavior of criminals, aiming to make them docile (domiti) and leading them towards penitence (ad paenitentiam). If, after prison (carcer) and chains (catena, standing in for vincula for the purposes of alliteration) the criminals remain “like wild beasts” (indomitae beluae), they are executed.443 On the whole, however, in both penological passages the final stress is on the “hope” and “patience” for a return to society – a very different possibility than that which awaited Roman criminal slaves.444

439 For the legal curriculum at Oxford and the Inns of Court in More’s day, see (Schoeck 1953).

440 The best account of these punishments is (Millar 1984), see esp. p. 126ff.

441 Utopia, p. 184. This language comes or less straight out of the Roman digests, cf. (Millar 1984) p. 132-5.

442 Utopia, p. 73.

443 Utopia. p. 192. For the Platonic resonance of recalcitrant criminals as “wild beasts”, see Laws 909a, discussed above, in Chapter Two.

444 Utopia, p. 193, p. 75. For incapacitation as the central aim of Roman penal slavery, see (Burdon 1988) p. 80.

177 3. Labor as reformative

More’s penology is a mix of Roman technique and Platonic rationale, but the Romans did

not think their punishment could reform, and Plato would not have dreamed of educating

through labor. We have still not explained how labor became a method of rehabilitation.

Perhaps it is best to begin with the broader question of labor. The revaluation of labor from

the disdainful attitude of the ancients to the assiduous toil of early modern Protestants has

occasioned a great deal of scholarly interest. Some have traced the shift to a change in the

attitude to the professions that began to occur at the beginning of the high medieval period.445

Other have seen identified the rise of laboring, self-sustaining monastic communities in

Western Europe, particularly in the wake of Benedict of Nursia, as a pivotal moment,

particularly given the ideological importance of the work-friendly Rule of Benedict for

constituting later monastic practice.446

The most outstanding philosophical exemplar of this shift, and one very dear to More’s

heart, was St. Augustine.447 The Bishop of Hippo, while familiar with the works of Cicero

and Seneca in praise of leisure (otium), took up the cause of labor within the Latin church. In

his influential work De opera monachorum he addressed question of physical labor in the

community of saints. Castigating those ascetics who claimed that their holy life excused them

from providing for themselves, Augustine insisted that work can improve men, teaching

445 See (Le Goff 1980). I have also relied on (van den Hoven 1996).

446 See (L. White Jr 1978) p. 217ff and (Mokyr 1990) pp. 203-204. See (van den Hoven 1996)p. 152ff.

447 More gave a well-attended lecture course on Augustine as a young man, and read him closely over the course of his life. See (Raitiere 1973) and (Baker-Smith 2007).

178 virtues like pride and humility,448 and is a human obligation emphasized in both the Old and

New Testaments.

Whatever the particular origins of the work ethic of Western Christianity, by More’s

lifetime the lion’s share of the transition from ancient attitudes to modern ones had taken

place.449 This was especially true in cenobitic communities, which, as Weber himself

recognized, had begun to rationalize the practice of labor, if only for otherworldly ends.450 If

More was very probably influenced by Augustine’s intellectual arguments, he was almost

certainly influenced by the monastic practices of his own day.

In the years after his lectures on Augustine but before his eventual marriage, More spent

as many as four years living as in close communion with the Charterhouse of London.451 The

Carthusians were known for organizing their habitation in individual cells around the central

cloister, an architectural novelty which has its origins the idea of the monastery as a

preparation for the even more ascetic life of the hermitage. The Carthusians were notable not

only for their architecture, intended to promote the individual’s communion with God, but

for their considerable devotion to a discipline that forbade all private property, even books.452

The rigor of the Charterhouse made a lifelong impression on More, who even compared his

448 De opere monachorum XXI.25: …tanto ulique felicius quanto forties educati. Cf. ibid. XXIV.32.

449 (van den Hoven 1996) finds the attitudes even in the high middle ages still fundamentally equivocal (pp. 243- 255), suggesting a larger role for the Renaissance in this story than has heretofore been acknowledged in the literature.

450 Economy and Society, p. 1171.

451 So the earliest biographical account, by William Roper, attests. (Wegemer and Smith 2004) p. 19. Some scholars have expressed doubt that this is true, but even if he was not technically a lay brother and merely associated with the Charterhouse while living nearby, More’s familiarity with the Carthusian way of life is amply attested in his work. See (Barron 2011) for the fullest account of More and the Carthusians and bibliography.

452 For the history and lifestyle of the English Carthusians, see (Coppack and Aston 2002) and (Hogg 2009). For the Carthusian monastery as an important waypoint in the architecture of reformation, see (Evans 1982a) p. 57.

179 room in the Tower to a monk’s cell, noting to his daughter “if it had not been for my wife

and you that be my children….I would not have failed long ere this to have closed myself in

as strait a room, and straiter too.”453 More’s idea of incarceration, though fundamentally

Roman, seems to borrow something from this monastic heritage. The penal slaves are locked

away each night individually, “in their cubiculi.”454 Another possible influence on More is

the practice of ecclesiastical and monastic imprisonment, then in common use. The Rule of

Benedict, for instance, calls for penal isolation to induce penitence (paenitentia), and there

are other early examples of the cenobitic prison (carcer) as a place to address sins of pride

and laxity.455

More’s depiction of a reformed system of punishment thus combines three disparate

elements – the institution of penal servitude as it survived in the compendiums of the Roman

lawyers,456 the idea of deterrence and reform as the chief aims of punishment as argued by

Plato in the Laws (among other places), and finally, the conviction that hard work and

isolation were not only not detrimental, they were essential to the sort of discipline that

belongs to the care of the soul, a sentiment found very clearly in the monastic communities to

which More was drawn.

453 Also reported by Roper, (Wegemer and Smith 2004) p. 52.

454 Utopia, p. 72. In More’s Renaissance Latin cubiculum meant not only bedroom, but any small room, something like a monk’s cell. The Carthusian order, like other monastic orders, itself made use of confinement in an “ecclesiastical prison” to punish infractions.

455 For the origins of monastic incarceration, see the excellent (Hillner 2015), especially p. 191.

456 Penal servitude did not survive in any meaningful sense as a form of state punishment through the middle ages, and More’s reference is clearly to the Roman practice, not to medieval or feudal versions, which had more to do with private recompense than public law. For the historical discontinuity between ancient and medieval penal servitude see (Rio 2015).

180 This chimerical combination of labor and discipline fits well with what More identified

as the chief causes of social disturbance – indolence on the level of society and overweening

pride in the soul of the individual.457 The form of incarceration used by the Polylerites and

the Utopians puts to work those most likely to tend toward indolence and forces them to toil

towards the public good, both making idle hands active (publicae rei servient) and causing

proud souls to become tame (domiti). In doing so, More could plausibly claim to have

fulfilled the fundamental aim of the New Learning, to combine the best philosophical

arguments of the Greeks with the best spiritual practices of the Church.458

Conclusion: From More to the Modern Prison

While broadly recognized as a literary masterpiece, and not infrequently compared to both Plato’s Republic and the contemporary writings of Niccolo Machiavelli in its daring vision of politics and society, Thomas More’s text is not often discussed in connection with the history of incarceration.459 If the links we have drawn with the Laws are convincing, then Utopia must be seen as a crucial turning point in the idea of rehabilitative punishment and penal incarceration.

More took considerable inspiration from the philosophical framework of Plato’s Cretan city, but he added a crucial element to the use of incarceration. For the first time, penal labor was

457 For indolence, p. 63, for pride, p. 245.

458 The idea of combining the virtues of monasticism with the moral precepts of the pagan philosophers was a shared trope in the Northern Renaissance. Erasmus, who, it will be remembered, shared More’s affinity for the Laws, ends the first of the Adages by connecting Platonic and Pythagorean communism with “coenobium, nimirum a vitae fortunarumque societate” (Erasmus 1993), p. 85.

459 The exception is Spierenberg, who rightly places More at the beginning of the early modern workhouse tradition. See (Spierenburg 1996).

181 envisioned as both an application of state power and technique with deterrent and reformative potential.

There is another sense in which the Utopian society is an important, and underappreciated, successor to Plato’s second-best city. Like the Laws, Utopia is an attempt at an explicitly “institutionalist” form of political thought. The two works share an approach to designing institutions that ensure correct behavior without depending on human perfection. This characteristic, which some have seen as the identifying trait of the entire “Utopian tradition,”460 denotes a distinct method of doing abstract political theory. Both propose theories of human behavior (choosing more or less hedonistic models of the psyche) and then design laws, organizational structures, in short, institutions, to produce pro-social outcomes, no matter the varied possible inputs (although it cannot be coincidental that both polities in the Laws and

Utopia depend on a great measure of isolation, restricting all intercourse with the outside world).

This should be identified as a distinct alternative to the idealizing mode of the Republic, which attempts to determine the correct relations and distributions between parts of the political whole.

Rather than speaking broadly of “Plato’s” influence in the history of political thought, it is time to more clearly distinguish the influence of the Republic from that of the Laws.

Where punishment is concerned, the Laws, and the institutionalist approach to punishment that was revitalized by More, clearly held sway. Some readers will already have spotted, in the combination of Plato’s medicalized terminology of punishment as cure and

More’s adoption of penal servitude, the fundamental building blocks of the 18th century reformatory prison, the direct ancestor of the present-day penitentiary system across much of the

460 For the Utopian tradition in political thought see (Manuel and Manuel 1979) and (Davis 1981), as well as the essays in (Claeys 2010). This is Davis’ formulation, see (Davis 1981) p. 37ff. Some have taken issue with it. See (Hill 1981).

182 Western world. More’s text thus marks a crucial and unheralded turning point in the history of incarceration. Utopia is a society ambivalently poised between punishment as a form of education towards virtue and imprisonment as the laboratory of labor. In More, Platonic perfectionism coexists with the proto-liberal idea that a productive society will leave citizens freer to pursue their own aims. In order fully transition from the classical aspects of Utopia to the more modern aspects, to move, we might say, from More to the birth of the prison, two possible routes of transmission for the institutionalist model of penal incarceration must be explored.

The first of these runs through the particularly English tradition of the “full employment utopia.” More’s diagnosis of indolence as a cause of crime and the solution of penal labor has a long afterlife, from Burton’s recommendation of workhouses in his ideal society (tucked away in

The Anatomy of Melancholy) and continuing through the utopian projects of the tumultuous 17th century.461 The second path of influence is more tendentious, but no less important for that. As early as Rabelais, the idea of the monastery as an ordered space for “self-government” started to make inroads on the continent.462 Strange as it may seem, it was the French version of utopian behavior as it developed in Fenelon and Montesquieu that was to have the greatest effect on the history of incarceration, via its impact on the work of Cesare Beccaria and, most importantly, on the mind of Jeremy Bentham.463

461 (Burton 1638), p. 65n. See note “k” for the direct reference to Utopia. For the tradition of “full employment utopias” more generally see (Davis 1981) and (Fuz 1952). A fuller account might trace More’s influence on the literature of the Revolutionary period, and in turn, relate these 17th century discussions to the origins of 18th workhouse schemes such as Fielding’s “Country House.”

462 Of course, the principle of self-government in Rabelais’ Abbey of Thélème is the anarchic “do what you will.” This lassaiz-faire utopianism is a parallel, but no less important, development to the interventionist tradition excavated in this dissertation. For the interaction between the two in the work of Bentham see (Harcourt 2011) and Chapter Five below.

463 Just as this chapter began with a leap, so too must it end with one, and the exploration of the development of punishment in the utopian tradition will wait for another occasion.

183 Chapter Five: The Nudge and the Prison Cell, Bentham’s Frugal Institutions of Correction

Whatever the means of transmission may have been, interest in More’s utopian institutions, or an idea of what those institutions stood for, persisted into the late 18th century, long enough to influence the intellectual development of the man who would become one of the most important institutional designers and penal theorists of the modern era. Although Jeremy

Bentham is often thought of as a harbinger of the leading ideas of the 19th century, such as popular democracy, market-driven political economy, and, of course, hedonic utilitarianism, he grew up under the auspices of the French enlightenment, with a particular weakness for the political fantasy (not to say utopia) of Fenelon’s Telemachus.464

Among the philosophes among whom the young Bentham hoped to place himself, the connection between utopian literature and political progress was clear and important. Fenelon’s text, especially the idealized city of Salente, stood for legal reform and limited government.465

Cesare Beccaria, another important influence on both the French Enlightenment and Bentham more directly, traced his own theories back to Montesquieu’s Orientalizing utopian work, the

Persian Letters.466 And, in a letter to Bentham, the Helvetian Chevalier de Chastellux, suggests

464 For an indispensable treatment of the French influence on the young Bentham, see (De Champs 2015), especially p. 41ff.

465 See (De Champs 2015), pp. 23-24. Bentham himself traced the origins of the principle of utility, perhaps fancifully, to his youthful reading of Telemachus. See B x.10. For a more considered discussion of the role of French thought among other influences on the emergence of Bentham’s utility principle, see (Schofield 2009) p. 28ff.

466 (Beccaria 1995) p. 122.

184 that Beccaria, whose influence on Bentham’s early penal writings was clear, owes to More’s

Utopia “the germ of [his] principles.”467

In light of this intense cross-pollination between utopian romances, materialist philosophy, and the intellectual habitus of the young Bentham, it should not surprise readers to see the father of utilitarianism repeatedly refer to his own institutional plans, and especially his Panopticon designs, as “Utopias.”468 Utopia was not an abstract designation for Bentham. As he made clear more than once, his projects should be compared with those of the sixteenth-century Chancellor of England, and the comparison would, Bentham thought, be favorable to himself.469 “In the Utopia of the sixteenth century, effects present themselves without any appropriate causes; in this of the nineteenth century, appropriate causes are presented waiting for their effects.”470

Bentham may have been right to distinguish himself from More’s beliefs about cause and effect, but some surprising continuities between More and Plato’s approach to punishment are to be found in Bentham – as well as significant differences. This chapter will reexamine one of the most well-studied aspects of Bentham’s thought – his writings on punishment and incarceration

– and try to determine more precisely Bentham’s place in the history of institutions of correction as it developed from the ancient through the early modern and into the modern world. For the first time, this chapter will present Bentham as both the continuation of a classical tradition in

467 (Bentham 1968) pp. 140-141. Chastellux was a “fellow disciple” of the arch-materialist Helvetius, perhaps the most important French model for the Bentham. See (De Champs 2015), pp. 42-45.

468 In the original Panopticon letters, he refers to the Panopticon as “my own utopia” (B.iv.49). He more than once refers to the pauper Panopticon as a “utopia” as well, although more ambivalently, sometimes affirming and sometimes denying the label. See (Bentham 1981) p. 377 and (Bentham 2010b) p. 653n, See also (De Champs 2012) and the balanced assessment of Bentham and More in (Semple 1993) p. 297ff.

469 See for instance, (Bentham 2010b) p. 374n2.

470 Jeremy Bentham, Official Aptitude Maximized, Expense Minimized, ed. by Philip Schofield (Clarendon Press, 1993) p. 37. For a similar formulation about the Panopticon, see below.

185 incarceration, as well as, as has long been recognized, an important waypoint for the theoretical development of the modern prison.471

The chapter will begin with an examination of Bentham’s theory of punishment in order to determine whether and how the technique of punishment mattered for Bentham’s account, as well as how Bentham’s famously hedonistic moral psychology is implicated in his discussion of both the aims and form of punishment. The next section takes up Bentham’s central innovation in punishing – the Panopticon. Bentham’s prison is a paradigmatic example of the “total institution” in contemporary social theory. It is also, however, an institution of correction of the sort that was identified in Plato and More. The Panopticon will be analyzed as both a site of behavioral intervention and an unparalleled reimagination of the relationship between education and correction that were so present in the earlier institutional models. Finally, the chapter will grapple with the paradox of behavioral intervention and social control in the context of

Bentham’s liberal political thought – a paradox that haunts the history and theory of incarceration down to the present day.

471 For studies that highlight the role of Bentham’s Panopticon in the history of the prison see (Ignatieff 1978), (Morris and Rothman 1997), (Foucault 1977), (Evans 1982a), and (Melossi and Pavarini 1981) among others.

186 I. Bentham on Punishment

1. Punishment as proportionality and frugality

The earlier chapters of this dissertation grappled with the distinction between the discourse around punishment and incarceration in political life, for instance, in democratic Athens; and the problem of a theory of punishment that could practice, via the appropriate penal technique, what it promised philosophically. As might be expected, the relation between Bentham’s philosophy of punishment and his extensive discussion of penal techniques cannot be assimilated to the same patterns that emerged in Plato and the Platonizing More.

This section will examine the relation between philosophy of punishment and the theory of incarceration in Bentham through an examination first, of the aims of punishment, and then through the moral psychology of pleasure and pain that any technique of punishment will have to use in order to accomplish those aims. Although the relation between incarceration and the fundamentals of punishing remains a matter of some controversy, the section will end by suggesting a new framework for understanding the relationship between the Panopticon and

Bentham’s philosophical thought.

Jeremy Bentham’s theory of punishment can be read as a series of straightforward propositions. Punishment is an “artificial consequence, annexed by political authority to an offensive act.”472 This definition, given just before Bentham’s general explication of punishments and offenses by his methodical process of “bifurcation,”473 points to at least three

472 (Bentham 1996) (henceforth IPML), p. 157.

473Cf. IPML, p. 187n. Bentham’s emphasis. Despite Bentham’s avowed hatred of Plato, this is suspiciously similar to the Platonic method of separation and division practiced in the Statesman and Sophist.

187 different elements that constitute the philosophy of punishment. The first element is the nature of punishment, what it is. The second element is the administering agent of punishment – who carries it out, which itself may have some bearing on the nature of punishment. The final element is the rationale of punishment – what punishment is for.

In considering the nature of punishment it is useful to have in mind Bentham’s unique theory of language and ontology. Punishment is what Bentham calls a “fictitious entity”.474 Fictitious entities are nouns that correspond to concepts that do not refer directly to something in the physical world. They exist only in language. In order to understand the connection of fictitious entities to the “reality” it is necessary to perform what Bentham calls “paraphrasis” – finding a connection to real, that is to say corporal, objects. In the case of “political fictitious entities” (of which punishment is one), paraphrasis leads to an understanding of how such entities refer back to a causal congruency with pleasure and pain.475 Pleasure and its opposite, according to

Bentham, are the clearest standards that can exist for connecting human morality and matters of fact.476 Correctly paraphrased, punishment is nothing other than a word for a certain relation to the creation of pain in human bodies and minds. According to the principle of utility (or, in

Bentham’s later formulation, the greatest happiness principle), any production of pain “is mischief” and therefore “all punishment in itself is evil.”477

This leaves punishment subject to a sort of paradox. As its classification as a “political fictitious entity” suggests, punishment is first and foremost associated with law and

474 See A Fragment on Ontology, and, for punishment in particular, B viii.206. See also (Hume 1979).

475 IPML, p. 11, cf. ibid. p. 187n for an insertion of the word “real”.

476 For a sophisticated explication of Bentham’s utilitarianism against the background of his epistemological skepticism see (Quinn 2011).

477 IPML, p. 158. Cf. ibid pp. 11-12.

188 government.478 Insofar as law and government exist to promote the common good, they will,

Bentham insists, need to conform to the principle of utility, aiming “to prevent the happening of mischief , pain, evil, or unhappiness.”479 Punishment is the production of an evil by political authority or law. The body whose task it is to punish, strictly speaking, is also tasked with eradicating the genus of which punishment is a species.

The solution to this puzzle is the minimizing of punishment at all costs. “If [punishment] ought at all to be admitted, it ought only to be admitted in as far as it promises to exclude some greater evil.”480 Inherent to the very nature of punishment is a trade-off, a calculation of the smallest measure of pain needed to prevent an equal or greater quantity of pain. Given this, it is perhaps unsurprising that Bentham begins his account of punishment by elucidating cases where, despite the commission of some crime, punishment should not be administered at all.481

Punishment is always already a last resort.

The costliness of punishment is central to Bentham’s discussion. His language is shot through with the metaphors of expense and profitability. Because punishment, as a form of pain, is fully commensurable with the pain it is trying to prevent, the metaphors of book-keeping are especially fitting. If the credit gained by punishment does not outweigh the debit of the mischief,

478 IPML, p. 74, 158. Given that punishment is a fictitious entity, its meaning in language can vary. Bentham sometimes refers to a something like a person being “punished” by stubbing her toe on an object she did not see (B viii.197, cf. ibid. 219n on discipline and punishment). The looseness of punishment as a concept will be discussed below.

479 IPML, p. 12.

480 IPML, p. 158.

481 The cases are where no mischief was perpetrated, where the mischief in question would be outweighed by the mischief of the punishment, where deterrence is impossible, and where a non-evil (such as instruction) would do just as well. See IPML, pp. 159-164.

189 if “its unprofitable, or too expensive” or if mischief can be prevented “at a cheaper rate” punishment must be eschewed.482

This feature of Bentham’s theory of punishment confuses the stereotype of the philosopher as a disciplinarian. Instead of absolute control, Bentham is after a sort of maximization – the most result for the lowest cost given the particular constraints.483 This principle applies not only to the question of whether or not to punish, but also to the mode of punishment itself. Punishment can manage costs a number of ways (keeping in mind that the currency under discussion is pain). It can deter future crimes, it can encourage fewer offenses and offenses of a less harmful sort (e.g. assault versus assault with a deadly weapon), and but whatever it does it should do “at as cheap a rate as is possible.”484 For the most part, Bentham suggests, these aims can be accomplished by adequate attention to proportionality.

Bentham is by no means the first penal theorist to recognize the connection between utility and proportion in punishing. He cites Morellet’s incredibly popular (if rather free) French translation of Cesare Beccaria’s Dei delitti e delle pena as a forerunner, and it is worth pausing to ask how much Bentham is borrowing from Beccaria.485 Beccaria invokes proportion for some of the same reasons as Bentham – it is a way to make worse crimes rarer (what if there were no difference between assault and assault with a deadly weapon?). Beccaria, however, does not give a rubric for proportionality. Instead he imagines “a scale of wrong actions” between the destruction of society and the smallest injustice. The ideal penal code will be “an exact and

482 IPML, p. 159. Bentham’s emphasis.

483 Or, perhaps, as we will see, it is disciplinarity which allows this frugal relation to emerge.

484 IPML, p. 165. Bentham’s emphasis.

485 IPML, p. 166. See (Hart 1982).

190 universal scale” of punishments corresponding to crimes.486This is subtly, but importantly, different from Bentham’s idea of proportion. The rule of proportion in Bentham is not a universal scale, it is a measure of what Bentham terms in a related context “frugality”. The limits of frugality are not measured by the smallest crime and the largest, but rather by the “maximum” deterrence produced and “minimum” pain delivered in a given situation.487

From a strictly economic perspective, the type of punishment is as important an element in the calculation of the costs of punishment as any other variable. Fines, for instance, are pure

“transfers”, while prisons incur overhead, the loss of labor, and other indirect costs.488 Bentham considers the properties of punishment, though not in as explicitly economistic terms as Gary

Becker. One consequence of viewing punishment as a maximizing or minimizing function is that it must be “variable” in point of quantity, but apply as evenly across the people who receive it as is possible.489

The argument seems to stray from the economic mode when Bentham suggests that punishments should carry the “character” of the crime they punish in some sort of analogical sense. The more a punishment is associated with a particular crime, the logic goes, the more

“exemplary” and deterrent it will be. Exemplarity must always be tempered, however, by

486 (Beccaria 1995)

487 Bentham makes this point against Beccaria explicitly in the Rationale of Punishment (see below), B. i.399. More than a few scholars have noted that it is precisely in his “economic” understanding that Bentham advanced beyond earlier thinkers. (Hart 1982), p. 46, and especially (Draper 2009) Gary Becker himself credited Bentham with a fundamental anticipation of elements of his argument about crime as a question of minimizing the loss of aggregate income. (Becker 2004), see also (Posner 2004), pp. 52-61.

488 (Becker 2004), p. 44.

489 IPML, p. 176. It was a critique Bentham used against forms of punishment like transportation that they operated per saltum – you were either transported or you were not (B iv.153), and against fines and banishment that they hurt the poor more than the rich.

191 frugality. Exemplarity tends towards more deterrent power, while frugality tends towards less real pain. Bentham thinks the death penalty very exemplary but extremely unfrugal – while the private levying of fines would be very frugal but utterly unexemplary.490

The general principle behind Bentham’s theory of punishment is proportion of pain administered against pain prevented under the constraints of frugality. This is, a far cry from the explicitly virtue-oriented approaches in Plato and More discussed about. In some ways, it harkens back to the simple, future directed suggestions of Demosthenes discussed in Chapter

One. The important thing is how things can go best, and “best”, for Bentham can be determined as a function of pleasure and pain. Bentham’s formula says nothing, however, about how punishment accomplishes the parsimonious prevention of pain. Insofar as punishment is merely a word for a type of “mischief,” any mischief sould be able to serve as punishment.

Bentham does not in fact think this is the case. He lists three main elements to be aimed at in punishing – example (deterrence), reform (the improvement of the criminal), and incapacitation,491 and even goes so far as to note that particular techniques will be most efficient given particular ends – but it seems that no punishment can be philosophically perfect.

Punishments must be mixed and matched ad hoc.492 Bentham’s simplification of punishment to the frugal calculation of pains based on the various possible goals to be aimed at would seem to

490 IPML, pp. 179-180.

491 IPML, p. 158n, 180. A fourth, subsidiary element is compensation or restoration.

492 IPML, p. 185.

192 make penal techniques of merely secondary importance.493 If the only source for Bentham’s philosophy of punishment were the Introduction to the Principles of Morals and Legislation that might be an appropriate conclusion. Bentham, however, mentions in a footnote that the aims of punishment are to be treated in a separate work, The Theory of Punishment. It is to that work, or a simulacrum of it, that we must turn if we hope to understand the connection between the theory and practice of punishment.494

2. Punishment as intervention

In The Theory of Punishment, and the manuscripts related to it, Bentham provides a clearer picture of punishment. He notes an essential confusion in English between (1) the form of punishment (incarceration is a punishment) and (2) the social category it occupies (a thief undergoes punishment). Bentham signals that he will analyze both elements of the word.495

There is also a fuller account of what punishment is aiming at– taking away the physical power to offend (incapacitation), by changing the criminal’s will or desire (reform), and by inducing

493 This is the position taken by some Bentham scholars who claim that incarceration was merely a “penal device,” not central to Bentham’s philosophical ideas. This wording is from (Draper 2002), p. 1, but could equally apply to (Rosen 1999).

494 IPML, p. 185n. The Theory of Punishment does not exist as an integral text. The manuscripts drafts were used by Dumont to produce his French recensions of Bentham (Traités de législation civile et pénale [1802] and Théorie des peines et des recompenses [1811]). Parts of this were then translated back into English by Richard Smith as The Rationale of Punishment and included in the Bowring edition (for more textual history see IPML, p. xxxiii and (Bedau 2004), pp. 1-3). Strictly speaking it is not clear how much of the Bowring edition texts represent Bentham rather than Dumont or Smith (Dumont only rarely makes his intervention clear, Smith never). Some Bentham scholars use this as a reason for excluding The Rationale of Punishment and other texts from a discussion of Bentham’s theory (see (Draper 2002)). Manuscript evidence suggests, however, that at least the subject matter of the material in The Rationale of Punishment maps, more or less, on to Bentham’s plan for the work (see UC 99. 2-6), published in (Bedau 2004), p. 14. The contents of that plan will guide this chapter’s use of the works printed in the Bowring edition.

495 I will avoid direct quotation of words that cannot be verified as Bentham’s own, but this distinction is well attested in the manuscripts.

193 fear.496 In order to provide a plausible connection between the two meanings of punishment, however, Bentham needed to answer the question that proved so important (and difficult) for

Plato – how a given form of punishment can accomplish its aim. Despite the simplicity and elegance of the “proportionality” of mischief, Bentham’s discussion nevertheless depends, like

Plato’s and More’s before him, on the plausibility of his moral psychology.

To ask after Bentham’s moral psychology may seem unnecessary, given his reputation as

English philosophy’s preeminent hedonist. Beyond Bentham’s pleasure principle, however, lies some important psychological machinery worthy of foregrounding. The psychology of the principle of utility begins with a statement about human nature. “By the natural constitution of the human frame…men in general embrace [the principle of utility]…if not for the ordering of their own actions, yet for the trying of their own actions, as well as those of other men.”497 The idea that an act is right or wrong ultimately depends, in the eyes of observes, on its ability to

“promote or oppose” happiness,498 but Bentham does not claim that this principle alone explains or motivates human action.

Bentham, not far removed from the main sources of Scottish sentimentalism, more than allows for the influence of emotion (“passions”) on decision-making. The form that practical reasoning takes, however, is the same with or without emotion – it is the study and calculation of

496 B i.396, see UC 96.260.

497 IPML, p. 13.

498 Ibid. p. 12.

194 foreseeable consequences.499 Such calculations vary with the state and identity of the agent, both in terms of what Bentham calls “circumstances influencing sensibility” and the temper of the individual at the time of the decision.500 This is what Bentham means by calling punishment an

“artificial consequence” – it is a tool to alter the practical reasoning both of the criminal undergoing it and of the public that witnesses it. Punishment does not require the exact computation of a unit by some “felicific calculus”, it is enough that, given a knowledge of the general circumstances that have an impact on practical reasoning, the “quantity actually inflicted on each individual offender may correspond to the quantity intended for similar offenders in general.”501 Punishment, viewed under the aspect of psychology, is not merely about the evil of pain, it is about pain in its guise as an “efficient cause” of human practical reasoning.

Punishment must be designed based on a knowledge of what people have a tendency to do, and thus what they may be “made to do.”502 It is a matter, in Bentham’s later language, of changing interests.503

As with pleasures, interests are naturally varied. Punishment must be measured according the psychological state of the criminal, or, more precisely, to the tendency of a certain type of criminal. “There are some appetites which are circumspect and reflective, such are the appetites for riches, for power and for honour. There are others which are precipitate and blind – such are

499 See IPML pp. 174-4. This is not dissimilar to Plato’s discussion of “expectation” in the Laws or More’s careful hedonism in Utopia. One crucial difference, of course, is that Bentham’s hedonism is not merely pragmatic and is advanced in propia persona.

500 Ibid. p. 52.

501 Ibid. p. 169 (Bentham’s emphasis).

502 Ibid. p. 34. See (Harrison 1983), p. 137.

503 (Bentham 1983b), p. 91.

195 the physical appetites…”504 This account of psychology suggests certain not entirely comfortable penal consequences, as Bentham admits both obliquely and directly. On such result is that the crimes of the poor must be punished more severely, because the interest of the poor criminal is, in a sense, stronger in trying to achieve his aim.505 Bentham even projects the psychology of interest on to the aims of punishment. Incapacitation attacks the physical power that accomplishes interest, deterrence raises “up an artificial interest” to outweigh the original interest, and reform “weakens” the original interest, changing how the agent calculates consequences.506

Understood psychologically, punishment’s connection to pain becomes ever more mediated.

If pain is only a means to the end of creating “artificial consequences” and thus “artificial interest”, might one not attain the end by different means?507 In elucidating the broader structure of means at the disposal of the legislator, of which punishment is but one option, Bentham has recourse to a distinction he did not use in the Introduction – that between “direct” and “indirect” legislation.508 Of all the ways of effecting “inclination, knowledge, power” the “three expedients” of “influencing conduct”, punishment works most successfully on the first and the

504 UC 27.63

505 Ibid. Elsewhere (IPML, pp. 128-9) Bentham gives opposing arguments about the circumstances surrounding crimes of necessity, suggesting he was of two minds about the issue. See also (Draper 2009), pp. 28-29.

506 From the manuscript draft of Indirect Legislation, UV 96.260. Note the interchangeability of “artificial interest” and “artificial consequence”. Interests are, psychologically, a function of consequences. Neither Plato nor More, even at their most hedonistic, makes this leap from consequence to interest. This is because each has an understanding of an agent-independent good (that is, a good independent of all agents).

507 See UC 140.60: “The Law has to do with Pain as a means: with Pleasure, as a means and as an end.”

508 B i.367, see UC 87.42.

196 third.509 There is an obvious drawback, however, to punishment as mode of law. “The mischief must, in some degree, have already taken place before the remedy can be applied.”510 Indirect legislation is thus “whatever else can be done in the way of law” to prevent mischief and delinquency.511 In writing law, the lawgiver should always have in mind how best to shape the knowledge and inclinations of the unsuspecting agent. Indirect legislation stretches across every possible area of legal design, from how the tax code is structured to how poor relief is given out.

If at the root of punishment was a sort of efficiency function, it will always be more parsimonious to nudge than to punish.512

Bentham recommends a sort of “choice architecture” as a supplement to the penal code in modifying interests, and as a result, the line between punishing and not-punishing begins grows less and less clear.513 A tax on a substance, for instance, may cause the very same amount of pain that a fine on the same substance would have exacted, while averting more pain by discouraging the behavior before it happens and avoiding punishment after it has occurred. When describing the points at which intervention will be inefficient (the contexts where the “spontaneous action”

[sponte acta]) of agents tends towards higher universal utility), Bentham writes of the

“comparative inefficiency of such means…[of transfer] by taxes – that is by punishments”.514

509 UC 87.3, cf. UC 17.208

510 UC 87.42.

511 UC 87.3.

512 Recent scholarship has begun to draw the obvious parallels between Bentham’s project and that of “behavioral economics” particularly the “libertarian paternalism” of Sunstein and Thayler. See (Bozzo-Rey, Brunon-Ernst, and Quinn 2017); (Quinn 2017); (Bozzo-Rey 2017); (Brunon-Ernst 2017); (Engelmann 2017).

513 UC 87.11, relying on (Quinn 2017), pp. 14-16.

514 UC 17.217, cf. B i.394 where taxation is a “concomitant”.

197 Bentham’s reasoning seems to be that a tax is a direct form of intervention that causes pain, making it for all intents and purposes indistinguishable from punishment.515

The troubling ramifications of this unbroken spectrum of intervention from the framing of legislation to the carrying out of penalties are not difficult to discern. One example Bentham gives of “indirect legislation” is the institution of national identification procedures up to an including mandatory personal tattoos. On balance, he claims this “would become favorable to personal liberty” by making criminal investigations and proceedings more “relaxed.”516 Better the “invisible chain” fashioned by indirect legislation than the heavy chains of the prison.517

In searching for a theory of punishment to anchor the theoretical understanding of incarceration in Bentham, this section instead found that Bentham has less a theory of punishment than a general theory of legislative intervention, of which punishment is an important, but conceptually secondary part. The connection between proportion and utility that

Bentham inherited from Beccaria and others points towards the actual heart of Bentham’s thought, the minimization of pain. When pain can be minimized by other forms of intervention, or by non-intervention, punishment is needless, and some forms of intervention might as well be punishment, even if, in the strict sense of “a post-facto pain caused by some sanction”, they are not. What is important is not the word “punishment”, it is rather

legislation as a state of warfare: political mischief the enemy: the legislator is the commander: the moral and religious sanctions his allies: punishments and rewards (raised

515 This slipperiness was also noticed by Hart, in his introduction to IPML, (Hart 1996), p. cvii. Hart does think that there may be a defensible distinction between “criminal” punishments in Bentham and other punishments.

516 B i.557.

517 Bentham’s metaphor, ibid. See (Laval 2017).

198 some of them out of his own demesnes peculiaire, others borrowed from those allies) …direct legislation, a formal attack made with the main body of his forces in the open field: indirect legislation, a secret plan of connected and long-concerted operations, to be executed in the way of stratagem or petite guerre.

Most important of all is frugality: “the oeconomy with which [this war] may be carried on and the ingenuity which it is thought to require.”518

Bentham’s philosophy of punishment, aiming, as it does, at a frugality of pain rather than at any of the subsidiary rationales of punishment (reform, deterrence, or incapacitation), would seem to be far removed from the Socratic dictum that all punishment, like education, takes place for the good of the punished. Once punishment is placed within the context of this larger “war,” however, the spectrum of behavioral amelioration on which education and punishment coexist seems to have returned, albeit under a different guise.

The aim of education/punishment in the earlier theorists of incarceration was the inculcation of virtue, or at least virtuous behavior.519 Here, Bentham’s aim would seem to be entirely negative – the avoidance of “political mischief” that is, pain in the public sphere. But even this “negative” aim demands positive, ex ante interventions. It may be illiberal, or undemocratic to make the entire society into one school of virtue, but, unlike his sometime ward

J.S. Mill, Bentham does not hesitate to make all areas of public life, including moral and religious education, and indeed public law itself, into sites of behavioral coercion.520

518 (Bentham 2010a), p. 233.

519 More who acknowledged the value of “freedom and culture of the mind” (Utopia, p. 135) once again seems poised halfway between the ancient and liberal traditions, but the preservation of liberty was not the sole aim of the Utopian state. See (Marciniak 2018).

520 On Mill versus Bentham, see (Brunon-Ernst 2017)

199 Punishment, then, is one locus among many where the legislator has the opportunity to balance the behavioral scales against public mischief. It is in light of this broader project that we turn to Bentham’s writings on incarceration. It may turn out that imprisonment is a preferred penal technique not because of its inherent advantages in fulfilling the aims of punishment, but, as in Plato and More, for its inherent advantages in shaping human behavior.

II. Intervention, Incarceration, and the Panopticon

The focus of this section will be to elucidate the role of incarceration in the theory of legislative intervention introduced in Section One. Bentham’s Panopticon, besides being the

“total institution” familiar to readers of Goffman and Foucault, is an institution of correction not unlike Plato’s prison or More’s use of penal servitude. Like its predecessors, the Panopticon aims to modify human behavior according to a particular theory of moral psychology, and, like them, the Panoptic system is integrated into a large vision of society and law. The demonstration of this institutional affinity will require canvassing evidence from each of the four uses of panoptic architecture in Bentham’s corpus, as, unlike the earlier evidence taken up in this dissertation,

Bentham’s writings on incarceration span decades of his life, taking up many hundreds of pages.

The section begins with some historical context and a schematic account of how each form of the Panopticon relates to the theory of intervention/punishment, it will continue with an account of how the Panopticon accomplishes the aims of intervention, and conclude with a reappraisal of those aims, and of the theory of society that may lie behind them.

1. Incarceration before the Panopticon

200 The Rational of Punishment initially displays a marked skepticism about two aspects of imprisonment – its lack of frugality and the inequality of its effects (the loss of income for a poor man is much worse than that for a rich man, meagre rations are much worse for the rich man than the poor). Skepticism aside, Bentham concluded that “if any punishment can in itself be popular, this, I think, promises to be so,” and wrote that incarceration, correctly applied, could combine the religious, moral, and political sanctions in one institutional framework.521 Bentham even tentatively proposed a three tiered system of prisons (!) to address the full gamut of menial and capital crimes.522 Tellingly, the discussion of “laborious punishment” falls under a separate heading, suggesting that at this point incarceration and labor occupied entirely separate categories in Bentham’s scheme. Labor possesses the chief properties of punishment “in greater perfection, upon the whole, than any other single punishment,” and has much greater claim to being both frugal and equal than imprisonment does.523

As Bentham was beginning to consider what a proportionally sensitive use of prison and labor might look like, so too were his countrymen. In the centuries after Thomas More wrote, penal labor had moved off the page and in to the regiment of disciplinary measures found in various northern European cities from Hamburg to Amsterdam and Ghent.524 These workhouses,

521 B i.426. Dumont’s editorial footnotes which put these pages in the context of the Panopticon give some reason to be confident of their authenticity.

522 B i.430. It may interest readers of this dissertation to see that Bentham’s scheme has several striking similarities to the system proposed by Plato in the Laws (Ch. 2 above). The first prison, to be painted white, is for debtors and conforms to the jails of Bentham’s own day. The second, to be painted gray, “is designed for correction as well as for example” and inflicts “solitude, darkness and spare diet”. The last, to be painted black, does not release its inmates, who are to be made “as miserable” as they can be.

523 B i.437-41, quote from 439. Bentham would have known about efforts to employ convicts in dredging projects on canals and rivers.

524 For More and the comparative continental development of penal labor see (Spierenburg 1996) and (Spierenburg 1984).

201 often used to house vagrants, errant nobles, and other undesirables, were not penitentiaries as such. They were, for the most part, the forefathers of the squalid 18th century bridewells and jails that so shocked the reformers of the latter half of the century.525

From around the time of the Black Act (9 Geo. 1 c. 22, 1723), which mandated the death penalty for more than fifty crimes (including petty theft), social critics began to propose various alternatives to corporal and capital punishment. By the mid-century “age of sensibility” conscientious intellectuals and reformers had turned their attention to the overcrowded jails where debtors lived and criminals were often kept on remand in noxious conditions.526 The novelist and magistrate Henry Fielding was one of the first of these reformers to suggest a new form of incarceration as a solution to the overcrowding of the jails and rising rates of capital punishment. He planned and designed a massive “country house” prison that made use of penal labor not merely as a way to cause pain, but as a way to inculcate an honest work ethic in the rural poor and petty criminal class.527 On the continent, Beccaria himself recommended penal servitude as socially useful, and his readers in England, included a certain young resident of

Lincoln’s Inn, took note.528

When the American Revolution made the popular solution of penal transportation no longer feasible, England suddenly found itself on the verge of a full-blown crisis in punishment. Around this time, a series of penal reformers including Bentham’s hero John Howard and his fellow non-

525 Visual and literary references to the fetid prison abound. Most famously, perhaps, in Defoe’s Moll Flanders and Hogarth’s “prison scenes” including “A Rake’s Progress” and “A Harlot’s Progress.” See (Evans 1982b) and (Bender 1989).

526 See (Ignatieff 1978), pp. 15-43; (Semple 1993), pp. 65-67.

527 For Fielding’s schemes see (Evans 1982a), pp. 55-56 and (Radzinowicz 1948), Vol. 1, pp. 399-421.

528 For penal servitude in Beccaria, see pp. 53, 68, 75, and most strikingly, the frontispiece to the 3rd edition. Bentham read Beccaria in the “most interesting year” of 1769 (B. i.54).

202 conformist author Jonas Hanway published two immediately popular books on a novel penal solution that came to be termed the “penitentiary.” The history of this reform movement has been ably told elsewhere, but the combination of labor and incarceration in one site was an idea that had a tremendous impact on Bentham’s thought.529

Howard and Hanway’s suggestions were almost immediately taken up by the political elite.

Within two years of the publication of Howard’s State of the Prisons, a law funding the construction of a large-capacity “penitentiary” made its way through the parliament. Bentham saw this act as a chance to finally make a show of his “genius for legislation.” In his response to the proposed Penitentiary Act (16 Geo. III, c. 43, 1778), Bentham brought to bear his entire theory of punishment, excoriating the “unequal, unexemplary, unfrugal” methods of punishment then in use.530

Several of Bentham’s particular suggestions in his A View of the Hard Labour Bill are of interest for the way they foreshadow elements of his later panoptic plans, including the role of vocational and religious instruction, the collection of criminological data, considerations of inspection and the division of criminals into various classes.531 But what marks this work as a real advance, and the beginnings of Bentham’s mature penal thought, is his admonition to the

“Utopian speculator” who “unwarrantably presumes, that a man’s conduct…will quadrate with his duty, or vainly regrets that it will not so.”532 Here, Bentham is establishing a standard regarding the principles of institutional design, a standard explicitly set against the example of

529 See especially (Ignatieff 1978), pp. 44-142.

530 A View of the Hard Labour Bill, B iv.6. This was the text More sent off to the French thinkers he admired most, including Morellet and Chastellux, and it was thus this text that reminded Chastellux of More.

531 B iv.17-18, 29, 27.

532 B iv.12.

203 More. He will not make claims about human conduct that do not have a clear warrant in human interests. “Economy” and “morality” depend on the mastery of interest and incentive by administrators.

2. Bentham’s total institutions

Most of Bentham’s work on incarceration related to his plan for the Panopticon and several ill-fated attempts to have a prison of his design built by His Majesty’s government. Most readers will be familiar with the Panopticon, at least in outline, and this chapter will not retread the particulars of how “inspection” of the inmates was to work, the circular layout of the cells, the single warden spying on inmates with his lamp and one-way screens, or any of the other panoptic details that stick so vividly in the mind. The aim of this section will be to elucidate elements of the Panopticon that have been less recognized, or not recognized at all, but that bear directly on important tendencies in Bentham’s penal thought.

Bentham’s Panopticon was a paradigmatic example of what Erving Goffman termed a “total institution.”533 Goffman’s total institutions share a certain “family resemblance” in their organizational characteristics, but fill distinct social roles.534 Indeed, from his earliest proposals,

Bentham proposed the Panopticon not only as a prison, but as a hospital, an asylum, a school, and more generally, a grounds for experiments on social engineering.535 While many readers

533 See (Goffman 1961): “A total institution may be defined as a place of residence and work where a large number of like-situated individuals, cut off from the wider society for an appreciable period of time, together lead an enclosed, formally administered round of life” (p. xiii).

534 For the “asylum” as a total institution not limited to one functional form see also (Rothman 1990) and (Finzsch and Jütte 1996).

535 Panopticon; or The Inspection House, B iv.58-66.

204 have treated the later passages suggesting Panoptic schools and seraglios as a sort of jeu d’esprit,

Bentham devoted considerable time and energy to panoptic projects beyond the prison, and even his late Constitutional Code carries the telltale marks of the principle of inspection.536

The first, and most familiar use of the Panopticon design was as a penitentiary. This was proposed by Bentham as early as 1787 and the subject of a decades-long practical effort to secure funding and support for its realization.537 The main feature of the Panopticon prison was to have been what Bentham termed the “inspection principle” – the idea that as there would be no way to know whether an inspector was observing at any given time, prisoners would have to behave at all times as if the inspector was watching them. The internalized feeling of being watched produces the omnipresence of inspection.538

The usefulness of a prison building which promises such levels of control over the inmate seems obvious, and Bentham savors the completeness with which the Panopticon can accomplish the aims of punishment. Constant labor in a building whose form offers itself as the perfect

“manufactory” will create “inward reformation” through the ordering of behavior in those who enter it and provide exemplary images for public consumption.539 While deterrence, reform, and incapacitation (“security”) are all obvious consequences of effective incarceration, Bentham has quietly let go of “characteristicalness,” “analogy,” and other putative “properties of

536 Besides the prison, pauper, and school panopticons discussed below, (Brunon-Ernst 2012a) includes the panoptic situation of certain structures in the design of the administrative buildings in Bentham’s Constitutional Code. This is also noted in (Rosen 1983), p. 114.

537 For the structure of the Panopticon, see (Evans 1982a), for its history see (Hume 1973) and (Hume 1974), and for the best all-around account of the design, history, and theory behind the prison see (Semple 1993). The Panopticon will be familiar to most readers from the accounts listed in footnote 1 above.

538 B iv.44-5.

539 B iv.168, 49fn.

205 punishment”.540 Instead, the potential for extracting the labor-power of inmates leads him to focus on the salutary ways that labor can serve as a variable, commensurable, and frugal punishment.541

The way in which the management of the Panopticon accomplishes its aims will be examined more closely below. Here it is merely necessary to note that the Panopticon prison occupies an identifiable place on the spectrum of legislative intervention identified above. The Panopticon is the site of the most direct legislative intervention imaginable. It is a prime site of the infliction of pain, because, given its structure as a factory, the potential for the frugal offsetting of that pain is already present within the prison itself.

The next form of total institution designed by Bentham was presented as a solution to the problem of pauperism. Bentham referred to this application of plan as the “Industry House” or

“pauper Panopticon.” Although less-well known than the prison design, the possibility of applying the principles of the Panopticon to the problem of pauperism was important to

Bentham. The two institutions could be seen as a sort of family, “the Panopticon in both its branches, — the prisoner branch and the pauper branch.”542 The aim of incarcerating in the case of punishment is more or less obvious, and is certainly familiar from earlier penal thought,

540 See Panopticon; Postscript, Part II, B iv.122.

541 See B iv. 142-4.

542 B xi.103. As with the penal Panopticon, scholarly opinion has been divided as to whether Bentham’s plan to bring the indigent poor into a system of Panopticon work houses was admirably reform-minded (given that the alternative may have been Malthusian pessimism and starvation) or deeply despotic in aim and method. For the former case see (Poynter 1969) pp. 106-144, and (W. Roberts 1979); for the latter (Himmelfarb 1970) and, most comprehensively (Bahmueller 1981) who writes of the “pervasive, soul destroying repressiveness” of Bentham’s plan. The question must be taken up again in light of the important new edition of Bentham’s poor law writings, (Bentham 2001).

206 including Bentham’s own work. Bentham’s use of incarceration of in the case of “indigence” is less familiar.

In Bentham’s social thought, “poverty…is the natural, the primitive, the general, and the unchangeable lot of man.”543 The condition of leisure (“opulence”) is an “exception” and the necessary conjunction between labor and the creation of wealth might as well be described by the biblical adage: “By the sweat of your brow you shall eat.” Living at subsistence levels

(poverty) is a natural condition; but being unable to support one’s self to subsistence level

(“indigence”) a threat to the lives of the impoverished and therefore a significant source of pain.

To starve the indigent when things might be otherwise is therefore, in effect, to punish them for being poor.544 Bentham returns more than once to the relation between poor-relief and punishment. A key reason (perhaps, it will turn out the key reasons) to provide poor relief is to ensure “the security of the affluent”545 by removing the motive for crimes against property. Poor relief is thus a form of indirect legislation.

The vision of incarceration presented in the plan for a “system of Industry Houses” is similar to that of the prison Panopticon. At the heart of the design is a location where the connection between the labor of the indigent and their subsistence can be monitored and “secured.”546 It is not the paupers themselves Bentham needs to lock up, it is their labor power. Only people who work deserve to eat, but no man deserves to starve – therefore it makes sense to insure that people work in order to insure that they do not starve. This logic is behind the “work before eat”

543 (Bentham 2001), p.3.

544 Ibid. pp.6-7. Note this strange use of “punish.”

545 Ibid. p. 19.

546 (Bentham 2001), p. 68.

207 principle in the Industry house. Paupers are to be fed after they have worked off the equivalent value of their food.547

“The limits to power,” Bentham writes, “are the limits to responsibility.”548 With the Industry

House society takes responsibility for the sustenance of the lowest of its members, but it also demands the power to ensure the results it desires. The Panopticon, as a specialized device for the manufacturing of power over bodies and minds, is the perfect tool for such a task. Rather than the “short-sighted eye of false humanity” that recommends lenience for the delinquent and hand-outs for the poor, the Panopticon is a philanthropic method of making both crime and poverty rarer, or at the very least less eligible.549

Despite the similarities between these two total institutions, the pauper Panopticon is in some ways distinct from its carceral cousin. The Industry Houses function as a “net-work,”550 introducing a banking system, a coordinated labor market, a site for unified medical records, a national identification system, a centralized postal service, and much more.551 Bentham, who had read the great debates about centralization stimulated by Neckar, Bielfeld, and others, began to see the Panopticon not merely as a building, but as a site of police power, in both 18th senses of the word – a site beneficial for both the maintenance of security and for the optimal use of the state’s forces.552

547 Ibid. p. 207.

548 Ibid. p. 212.

549 Ibid p. 288. The eligibility of poverty is a great worry to Bentham, who may not have had the language of free- riding, but was ever-fearful of “hangers-on”.

550 Ibid. p. 66. The coinage seems to be Bentham’s own – one of a number of striking coinages to emerge from Bentham’s nachlass, including the first recorded English uses of “capitalist” and “rationalize”.

551 For the uses of this centralized institutional network, see (Bentham 2001), pp. 69-140.

552 For Bentham’s reading on this topic, see (Hume 1981). See also (Foucault 2007), p. 311ff. Like the authors in Brunon-Ernt’s Beyond Foucault (especially Christian Laval) and the authors in the special issue of the History of

208 Perhaps the most important difference between the two forms of the Panopticon for the purposes of the present study is how the Industry House is to be understood as a legislative intervention in behavior. It has elements of both of direct and indirect intervention. To a large extent, what would be mandated for a pauper by Bentham’s version a poor law is very similar to what a delinquent would have to undergo in Bentham’s version of a penitentiary bill. Bentham insists, however, that it is not a form of punishment. It is an indirect intervention to prevent crime and “mischief” in the future. He does not deny that the very same technique may be used on both a felon and a pauper, but he denies that the same technique has the same social meaning.553

Given Bentham’s fondness for non-penal forms of incarceration, the reappearance of this slipperiness in Bentham’s definition of punishment has important consequences for understanding his theory of the prison. In the Industry House direct and indirect legislative interventions, and punitive techniques for non-punitive ends, seem to cohabit under the same roof.

Bentham’s third total institution is his planned school, the “Chrestomathia” (a neologism meaning “useful knowledge”). From Bentham’s earliest plans for penal incarceration he foresaw both vocational and religious education as elements in the reformatory project;554 and the pauper

Panopticon, as will be discussed below, had a full educational complement for training the destitute children who would work there. Long after any hope for the political future of either

Panopticon had passed, Bentham still conceived of a use for his inspection house. In the

European Ideas (particularly Michael Quinn) this chapter finds Foucault’s later writing on governmentality and “the conduct of conduct” equally if not more useful for thinking about Bentham’s work than Discipline and Punish. As much as the Panopticon is a metaphor for disciplinary power, it is also a site for the production of statistical data, a site for the perfection of frugality.

553 See (Bentham 2001), p. 285.

554 B iv.18.

209 “chrestomathic” school the “monitorial” Lancaster-Bell system could be combined with the architecture of the “inspection principle” and a specially designed curriculum to ensure useful education at low cost to a growing middle class.555

Although not as explicitly carceral as his other projects (Bentham does not specify barred doors or indicate a protocol in case of escapees), the school must be included in the account of

Bentham’s total institutions, if only for his insistence that by building a panoptic school

“security is maximized, and rendered entire,” eliminating the distance between the teacher’s eye and the student’s behavior.556 Education is also worthy of its own location on the spectrum of interventions. The usefulness of carceral architecture for instruction relates to two of Bentham’s examples of indirect legislation, “the power of instruction” and “the power of education”.557 The school is a site of legislative intervention, but it is on the other end of that spectrum from punishment. The lawmaker may, indeed should, make use of the school curriculum to both promulgate the laws and to shape the students’ knowledge of the world in such a way that they are inclined to follow them.558 Education, as an ideal, is intervention without pain.

3. Management and economy in the Panopticon

555 See (Itzkin 1978) and the editorial material in the new edition of Chrestomathia, (Bentham 1983a).

556 (Bentham 1983a), p. 106.

557 B i.567-570.

558 Ibid. cf. B i.157-163.

210 One shared aspect of panoptic incarceration is the effect of obtaining total power over the bodies of inmates. Through inspection, the master of the building controls “authority so much exceeding anything that has been hitherto signified by despotic.”559 The power of observation is the power to stifle “dispositions unfavorable to security” including those of “vigour and courage.”560 The common goal of this discipline across every application of the inspection idea is not to cause reform or “repentance” (for what sense would that make in the context of a school?) it is to cause the inmate “to be industrious.”561 This characteristic, the production of “docile bodies” through the application of a “new mode of power” is one of the most familiar elements of the Panopticon. The section of the chapter will show in what ways the picture of “discipline” fails to entirely capture the essence of panoptic punishment.

In the Panopticon letters, Bentham identifies three “joint purposes of punishment”: securing the body of the inmate (control), reforming the conduct of the inmate (ultimately through labor),562 and “pecuniary economy.” Of these three, the first two are familiar, in one form or another, from Bentham’s pre-panoptic treatments of incarceration.563 “Economy,” however, is what Bentham initially thought the prison lacked. When Bentham weighs these three principal purposes against one another, he finds that “the very existence of the system” of incarceration depends largely on economy. This is not only a question of mere pounds and pence – economy is closely related to the concept of penal frugality traced out above. For the prison to be run

559 B iv.63. From Panopticon, though in the section describing its use as a school.

560 B iv. 142.

561 (Bentham 2010b), p. 225.

562 Initially Bentham, following Howard, saw solitary confinement as essential for reform. He soon changed his mind, however, and the reformatory aspects of incarceration were limited to the role of forced labor. See B iv.71-3.

563 See e.g. B iv.9,17; B i.424-431.

211 economically means for no harm to be administered that is not absolutely necessary and no pleasure given that does not produce an adequate multiplier of profit. One again, frugality slips between the sense of cost saving and the sense of conceptual efficiency. In this respect, the

Panopticon proves itself to be exceptional.564

It is not the arrangement of brick walls and iron bars that produce this effect of economy, and it is not even the method of central inspection, per se. The engine of frugality in the Panopticon is the organizational structure of contract management.565 Contract management appears alongside the inspection principle in the earliest Panopticon texts, and it remained a crucial element of the plan until Bentham’s death.566 The basic premise was that a contractor would bid on the right to run the Panopticon, and would be entitled to a portion of the profits.567 The profit motive would lead the administrator of the prison to look for efficiency gains in every place he could, and carefully designed checks, such as high fines for the death of inmates, would make sure he did not cut corners too far.568 The “punishment” of financial loss combines with the

“reward” of profit to direct the conduct of the official.

564 B iv.47, cf. B i.424.

565 The actual principles of panoptic management (beyond those mentioned above such as the interest-duty principle and the earn-first principle) have been adequately treated elsewhere. See (Bentham 2010b) pp. 112-135. There are good discussions in (Bahmueller 1981), p. 186ff and (Hume 1981), which brilliantly describes the broad development of management as a theme in Bentham’s work; see also (Guidi 2004).

566 Very late in his life Bentham still rued that he had not been given management of the contract for the prison: but for the conspiracies of sinister interest “all the prisoners in England would, years ago, have been under my management…all the paupers in the country would, long ago, have been under my management” (B xi.96-97).

567 This contractor need not have been one person. In the case of the pauper Panopticon Bentham explicitly envisioned a joint stock company (on the model of the East India Company) that would run the entire “net-work” of institutions, and sell shares at a low enough price that the middle classes could afford to invest small sums.

568 See B iv.125ff, (Bentham 2010b), p. 322.

212 In essence, the economy of the Panopticon derived from what Bentham saw as a perfect balance between the tremendous control over costs allowed for by the Panopticon’s delivery of power over the laborer, and the checks on avarice provided by adequate publicity. The architecture of the building would allow transparency, both in the views of the cells and in the openness of the central inspection shaft to the outside world. This meant that the contractor could design a business plan based around a monopoly on labor at or just below the cost of subsistence wages, but his treatment of the prisoners, the behavior of his staff, and the content of his bookkeeping would all be open to salutary scrutiny.569 Bentham was confident that with the correct incentive structure, the private interests of the parties and their duties as public officers could always be made to align.570

Bentham wrote at the end of a century that had seen the abuses of private contracts finally lose ground to nascent structures of bureaucratic oversight.571 Consequently, he knew his support of private contract management was a minority position even amongst the most devoted theorists of the new political economy. Bentham explicitly took aim at the very thinker who had first opened his eyes to the structures of efficiency and order, and accused Adam Smith of making contract management into a “hobgoblin.”572 Although sometimes described as a theorist of mistrust, Bentham fundamentally believed “it is only by accident that private and public interest

569 B iv.47-8, 127-128. For the theme of Bentham, transparency, and mistrust see (Bruno 2017). Bentham spent considerable effort designing and considering the administrative details and methods of book-keeping, which were as important to the Panopticon as the brick and mortar architecture. For a discussion, see (Hume 1981).

570 (Bentham 2010b), p. 373.

571 (Hume 1981) pp. 17-54.

572 (Bentham 2001), p. 278. Smith notes the tendency of tax farmers to combine to avoid competition, to extract profit at the cost of the general good, and any number of other failures of public/private partnership (The Wealth of Nations, V.2.218).

213 are at variance.”573 Contract management and the architectural design of the Panopticon itself combine “to join interest with duty”, where the profit motive of the administrator serves the “aim of the act”, that is to say, frugal management.574

This “interest-duty principle” does not only apply to the manager, it applies equally to the managed. The “end” of the inmate is “the extraction of labour, to as great a value as may be” consistent with health and custom (Bentham greatly resented mandatory rest on Sundays).575

This, as far as the total institution is concerned, is the “duty” of the inmate. The warden will use the inducement of pleasure and the threat of pain to make the inmate’s interest align with this duty. This process is a form of socialization and interest formation. While the contractor gains a profit from the labor of the workman, “the moral habits of the workman himself will in the same proportion be receiving improvement from the same cause.”576 The Panopticon is ever- parsimonious, serving the interests of the managing party even as it corrects the interests of the managed.

Does this teaching of interest not seem un-utilitarian? An underlying element of

Bentham’s moral theory is often thought to be that people are the best judges of their own interests.577 As was noted above, however, interest itself is mutable for Bentham. It is a fictional

573 (Bentham 2010b), p. 373.

574 B iv.125.

575 (Bentham 2010b), p. 521, cf. 558.

576 Panopticon versus New South Wales, B iv.185n.

577 See, e.g. (Stark 2013), p. 143. For Bentham’s account of egoism and interest, IPML, pp. 11-14, and, e.g. (Bentham 1990), p. 265: “If the result depended upon himself each individual would give expression and effect to such will as in his judgment would in the highest degree be conducive to his own greatest happiness, whatsoever became of the happiness of others, and consequently on most if not all occasions at the expence of the happiness of all others.”

214 category, closely tied to the ability of an agent to correctly discern and calculate consequences.578

Bentham accepts the reality of situated, motivated reasoning, and knows that different agents will calculate their interests differently based external factors such as age and wealth.579 This has important implications for how Bentham understands the behavior of his inmates. “To be engrossed by the present moment is among the characteristics of that lowest class of individuals” who are likely to populate the Panopticon.580 The lowest classes reason about consequences in a limited way, that is what led them onto the “path of delinquency” in the first place. The

Panopticon can train them, using the tools of punishment and reward, into understanding how to both calculate consequences more directly and how to work towards delayed gratification via

“projects of productive industry and innocent enjoyment”.581

The pauper Panopticon carries within it institutional evidence of these aims. The additional functions, or “collateral uses” include a “poor man’s loan office”, which would offer micro-finance services in place of pawnbrokers, banking facilities amenable to impoverished clientele, and remittance services so that both inmates and other laborers of the pauper class might be enabled to save and send their wages rather than keep and spend them.582 The wage

578 Scholars have long been interested in the possibility of a conflict between the individual’s calculation of interest and the interests of the “greatest number.” See the debate over (Lyons 1991) [1978], with contributions including (Rosen 1998) and (Postema 1998).

579 (Bentham 1990), p. 219n4. Ultimately, Bentham’s democratic theory relies on a precise, almost Rousseauian sifting out of individual from general (“universal”) interests. See (Postema 2006).

580 B iv.140.

581 Ibid.

582 (Bentham 2001), pp. 66-92.

215 structure in the pauper Panopticon even carried with it forced savings mechanisms to create sufficient capital for the pauper-inmates to become self-sufficient.583

The project of the Panopticon is thus a project of reforming interest. Labor does not only offsets costs in the service of economy. “The habit of industry is a source of plenty and happiness,” and insofar as the Panopticon creates industriousness, it creates welfare.584 It is important to decouple labor from the question of financial feasibility. The Panopticon allows its managers to create a constant conjunction between certain concepts in the minds of inmates.

Relief, liberty, and all other long-term goals are connected to labor. Personal identity and personal worth are connected to productivity. In Bentham’s vision of the Panopticon “low wages would thus be, and be seen to be, the punishment – the natural punishment – of bad character.”

Bentham calls this the Panopticon’s “advantage in point of morality,” that it makes value visually manifest in a way certain to operate on the minds of the prisoners and the public.585

A related advantage of the Panopticon as a form of behavioral intervention is the sterile environment it provides for the fabrication of certainty. Inside the building’s walls, particular causes (work) always lead to certain effects (reward). Bentham more than once refers to the

Panopticon as the ideal experimental chamber for any number of fanciful ends, but this mastery of cause and effect is directed to one goal above all other.586 Whether one refers to the

583 See (Bentham 2010b) 582-589 “Frugality assisted.” Many of these ideas (as with Bentham’s proposal for universal health records) would not find wider expression in public policy for another two centuries, but they reflect an approach to poverty alleviation that is strikingly similar to modern efforts to encourage micro-finance, savings and accessible urban banking in the developing world and impoverished communities.

584 (Bentham 2001), p. 45.

585 (Bentham 2010b), p. 201-202. For more on the behavioristic project of the Panopticon, see (Bahmueller 1981), pp. 164-200. Bahmueller describes Bentham’s project as the inculcation of what Max Weber identified as “worldly asceticism”. The Panopticon becomes an iron cage in a doubled sense.

586 With apologies to (Laval 2017), who uses the phase “fabric of certainty” to describe this feature of the Panopticon (Laval is himself punning on Bentham’s interest in the “fabric of security,” IPML, p. 11). For Bentham’s

216 managerial aim of the Panopticon as an education in acquisitiveness or refers more bluntly to an

“antechamber of the market economy,” the lesson of the Panopticon is the behavior of a rational actor in a competitive market.587

Bentham’s total institutions can thus be said to be frugal in two senses. They use the least resources while maximizing production, but they are also devoted to producing frugal behavior in their inmates.588 The aim of the Panopticon is the production of self-government, actors who police their own behavior in a manner befitting their self-interest. The art of “self-government”,

Bentham writes, is the fundamental content of ethics, while legislation is the art of the whole community’s government.589 The correct interpretation of means, ends, consequences and interests (government, correctly construed) is thus the ultimate aim of all legislative intervention, direct or indirect. The nudge and the prison-cell arrive at the same outcome.

Viewed from the aspect of the broader study, Bentham appears at the other end of a process begun by More’s penological appropriation of slave labor. Bentham may not privilege

“reform” in his theory of the aims of punishment, but he does view a certain type of behavior, or a certain model of practical reasoning, as optimal from the perspective of aggregate public utility and the public good. Incarceration, whether as punishment or prophylactic, is a site of the inculcation of this practical reasoning, and the creation of a connection between labor and reward

experimentalism, see B iv.64-65, and B viii.424-428 (reprinted in (Bentham 2010b)). “In this point of view, at least, Bacon…would not have regarded [the Panopticon] with indifference.

587 For the former formulation, see (Dube 1991) p. 316ff. For the latter, (Laval 2017), first published in French as (Laval 2006). It was Laval who first explored the connection between Bentham’s work on frugality, indirect legislation, and punishment.

588 Bentham seems to use “economy” as a narrower subset of the broader “frugality”. For Bentham’s use of the terms, see (Brunon-Ernst 2012b), pp. 113-120, as well as (Brunon-Ernst 2009).

589 IPML, p. 282.

217 in the minds of the prisoners, paupers, and public, is the crucial achievement of Bentham’s prisons.

In earlier models of the education/incarceration spectrum, incarceration was a corrective to be supplemented by the power of social custom. From Protagoras through Plato and on into

More, citizens were to be formally educated by parents and teachers, informally educated through mechanisms of shame, praise and blame, and, in the case of misdeeds, corrected through punishment. Bentham’s institutional model provides for the first and the third cases of intervention, but Bentham does not envision an informal aspect to social control. All interventions in behavior take place through the medium of the law. Bentham is fundamentally

Hobbesian – sovereign power “upon the principle of utility, can never be other than fiduciary.”590

And while the sovereign’s power within the medium of law is theoretically limitless (hence

Bentham’s famous distaste for the language of rights and liberties), that which the law does not forbid, it permits, and where “the thunders of the law prove impotent, the whispers of simple morality can have but little influence.”591

In Plato and More, the law was to be minimal, and social coercion, maximal.

Incarceration was the rare moment when intervention was required. In Bentham, social coercion can be neither relied upon nor trusted, and intervention must take place not only at the moment of correction, but continuously, through the indirect modes of legislation. Neither Plato, nor

More, nor even Demosthenes intended incarceration to stand on its own. The prison always existed in tandem with a larger vision of law and society. The use of what Bentham calls “private

590 IPML, p. 263n.

591 Ibid. p. 287.

218 ethics” is not directly available to the liberal legislator, so the interface between the rationality of the prison and the rationality of everyday life must be accomplished some other way. The final section of this chapter will examine how the “total institutions” described by Bentham fit into his broader social theory.

III. The paradox of liberal correction

The first two sections of this chapter have presented a general account of Bentham’s theory of incarceration, from its relation to his utilitarian theory of punishment to the technique of behavioral correction (for obvious reasons it would be inaccurate to call Panoptic confinement merely a method of punishment). The last section will attempt to draw some lessons about what

Bentham called the “advantage point in morality” created by penal labor, and contrast Bentham’s version of institutional political theory with the earlier versions treated in this dissertation. For

Bentham, labor is not only the sign of a stable society, as it was in More – it is the marker for a particular attitude towards rationality – that effort begets reward, and that those who have

“earned” property can expect to enjoy it. Prison labor is implicated in a whole set of relations between utility, property, and class – relations that ultimately stand behind Bentham’s entire logic of intervention.

1. Between rehabilitation and social engineering.

A)

In thinking about the relation between prisons, labor, and society, it seems sensible to begin with what happens at the moment of release. Throughout the thinkers studied in this dissertation the simplest and most direct connection between institutions of correction and the broader society has the ideal of reform - the rehabilitation and reintegration of inmates and their return to

219 society. Bentham often mentions the reformative aspect of the Panopticon. “No trade that could be carried on in this state of thraldom, but could be carried on with at least equal advantage in a state of liberty.”592 Inspection, “the only effective instrument of reformative management,” aims to cure delinquents of their ailment (chiefly, idleness) rather than to cast them out of society as transportation does.593 In the plans for the Pauper Panopticon, Bentham affirms that in the case of those consigned to the system as suspected paupers “the primary object will [be], because it ought to be, to restore them to society.”594 The inmate is released on probation, and he name published in the “Employment Gazette” for prospective employers to peruse.

In this vein, Bentham’s anxiety about the released penal inmate is worthy of some attention.

At the end of his term, “after a long seclusion, the convict is once more turned adrift into society.” His “former connexions are…dissolved” his prospects of employment, dismal.595

Bentham offers two solutions to the problem of reintegration – one is to institute a system of

“good behavior” certificates to mollify prospective employers, the other is impressment into the

Army or Navy. Despite the repeated mention of reform as one of the essential elements of punishment, and despite the protocols for probation and release, it is not certain that Bentham envisions a return to society as the standard outcome of incarceration. In the passage above about trades carried on in liberty, Bentham goes on to say that “both parties would probably find their account in continuing their manufacturing connexion.”596 That is to say, a new position for the

592 B iv.55.

593 B iv.175, cf. 186n.

594 (Bentham 2010b), p. 46.

595 B. iv.21-22.

596 B iv.55.

220 recently released convict would be found back in the Panopticon. From the very beginning of his carceral project, Bentham is not sure that it will be realistic to expect the return of the convict to an unmonitored civic life – such a scenario may require effects that do not have adequate causes.

It may be the most “utopian” aspect of Bentham’s prison design.

This feature, that the inmate may choose, or be forced to choose, to stay in the Panopticon after his sentence is over, returns repeatedly throughout the texts on incarceration. Bentham sets a series of varying (but invariably stringent) conditions for release. In the case of the Panopticon prison this means impressment into the Army or Navy, or finding a householder to post a £50 bond. Bentham recognizes that many (even most) inmates will be unable to obtain such a sum, and suggests that they be made to enter a “subsidiary establishment,” also a Panopticon.597 In unpublished drafts of the Panopticon Bill, Bentham named this building the “Metasylum,” and called for its terms to last no less than a year, to be renewed annually.598 The prisoner thus becomes a “Metasylum man,” entering a new system of labor exploitation.599 Bentham requires a similar bond from a “responsible Housekeeper” in the case of pauper released from an industry house, though the probationary period is only a year.600

The more one looks, the more all-encompassing Bentham’s conception of the panoptic system becomes. Bentham divides the inhabitants of the pauper Panopticon into “two

597 B iv.166. Bentham acknowledges the traditional aspects of “family responsibility” that had accompanied poor laws since Elizabethan times, but he does not rely on it. He would be just as happy to have the necessary “human capital” produced within the panoptic system. In this, Bentham differs from Gary Becker and others who relied on the family to produce the productive, rational actor. See (M. Cooper 2017).

598 UC 119.154. Here Bentham also accepts service in the East India Company. See (Semple 1993), pp. 177-180. Semple writes that these policies are due to the fine levied on the contractor in cases of recidivism that Bentham proposed to encourage reform.

599 UC 119.222. Bentham notes that because of his limited employability, the wages of such a Metasylum man can be low.

600 (Bentham 2010b), pp. 217-218.

221 correspondent classes” the “indigenous,” those who are “born into the House”; and “the

Secessionists” born without.601 This is connected to Bentham’s unpublished plans for a baby-

Panopticon or “paedotrophion,” and subsequent Panopticons that would see a child grow from infant to adult, working all the way.602 Bentham is not insensitive to the way in which his conception ruptures the relations between parents and children and “bursts asunder” the “closest ties” of family.603 The objection to the Panopticon as a cause of “natal alienation” is uncannily close to Orlando Patterson’s definition of slavery as social death. Bentham’s response is that pauperism, and the cure for pauperism, are both matters of choice (the same could be said of crime), and that given the plurality of goods, “there must be a subordination had amongst ends.”604

From the picture that emerges from the various discussions of life after the Panopticon it seems clear that rehabilitation is not the point of incarceration. Bentham might, in principle, agree with More’s determination that penal labor can “destroy vices and save men”605 but he has a much clearer view of the “usefulness” of incarceration than even More did. As we have suggested, here, Bentham is in the finest tradition of English “full employment” utopian theorists

– but his vision of just what full employment means is far more clear about the causes and effects of incarcerated labor than any earlier author had been.

601 (Bentham 2010b), p. 139.

602 UC 107.54ff. See (Semple 1993), pp. 288-290.

603 (Bentham 2001), p. 191.

604 Ibid. In Bentham’s defense, he was not the only reformer at the time concerned or skeptical about the fate of discharged convicts. His friend and interlocutor Patrick Colquhoun wrote: “That man will deserve a statue to his memory who shall devise and carry into effect a plan for the employment of Discharged Convicts, who may be desirous of laboring for their subsistence in an honest way.” Similar sentiments were surely on Bentham’s mind. See (Colquhoun 1796), pp. 89-92.

605 Utopia, p. 75.

222 If the law must directly intervene in human affairs, as in the case of the creation of “artificial consequences” through punishment, it is best to do this in such a way that that as much is gained by those consequences as is possible. One such gain is the yoking of interests to duties through the profit motive. Another such gain is the inculcation of motives, the training of minds to see profit and perceive the conjunction of cause and effect, in a new way. In addition to these cognitive achievements, there is an additional gain to utility from the Panopticon hiding in plain sight – the efficient use of excess capacity in the labor supply and the creation of laborers where there were none before.

Bentham himself refers to the population of Panoptic inmates as the “stock of hands”, or

“species of Cattle,” whose “capacity” would yield profit to be “reaped.”606 This aspect of the

Panopticon is the turning of “idle hands” into active hands.607 “Idle hands” is a category with wide catchment, from the temporarily unemployed pauper, to the mistrusted former sex-worker, to the convicted delinquent, who is, after all, only another species of unexploited labor.608 Most important, at least in the case of the pauper Panopticon, is the species known as “unripe hands,” indigent minors, who have not yet been trained, and can legally be treated as “apprentices” without any right to a wage. It is from this class that much of the profit of non-penal Panopticons will be derived.609

606 (Bentham 2010b), p. 12, p. 23; cf. (Bentham 2001), p. 284.

607 (Bentham 2010b), pp. 23-60. Bentham’s language here could be read as strictly a comment on enlarging the labor force (creating the “docile bodies” necessary for industrial labor), but, Bentham is equally interested in what kind of laborer will exist. The Panopticon is designed to take the place of the entire educational-familiar apparatus that trains and prepares a worker. Bentham is approaching the territory of Becker’s “human capital.”

608 For the complete listing of the categories of unused labor, see the chart printed by Bentham in the “Annals of Agriculture” and published in (Bentham 2001), p. lvii.

609 See (Bentham 2010b), p. 334. It will be remembered that in the penal Panopticons, the limited monopoly on labor power will provide sufficient margins for profit. Many readers of the Poor Law writings have found the nadir of the

223 The question of under-exploited labor capacity is an empirical one, and Bentham was well aware that if too many of the poor were disabled, or too many convicts were unproductively insane, incarceration by Panopticon would cease to be economical. For this reason his project was deeply invested in the collection of statistical knowledge of populations. Bentham attempted to analyze flawed data from the nascent demographic experiments of the Royal Society, and ultimately tried to create his own data set through the distribution of a “Pauper Population Table” to be filled out and returned, parish by parish.610 His interest in the labor market as an empirical phenomenon positions Bentham as a pioneering figure in a shift from the general debate about the organization of the forces of the state to the understanding of those forces as being constituted by and answerable to the statistical sciences, chief among them political economy.

Aside from a commitment to a certain empirical method, Bentham’s carceral scheme carries with it a series of additional social-theoretical assumptions. Bentham subscribes to a broadly

Lockean view of the creation of value through labor. “In every country, the whole stock of existing wealth…is the product of the labour of individuals, deriving their subsistence from their own labor.”611 This “class of persons maintained by their own labour” is the lynchpin of social and political life. Neither the opulent, who are exceptional in not having to work, nor the indigent, who are “hangers on,” provide any model for behavior. Bentham thinks it self-evident that people will not work if they do not have to. Therefore, making industrious behavior “more

scheme’s depredations in the dependence on child labor. See (Bahmueller 1981) and (Himmelfarb 1970). Others have noted conditions for poor children were not necessarily more eligible than this. See (Poynter 1969).

610 For Bentham’s attempt to wrestle with the ultimately untenable Royal Society numbers, see (Bentham 2010b), p. 442ff, and the Editorial Introduction to same, p. lxxxii-lxxxiv. For the table, see ibid. p. 470.

611 (Bentham 2001), p. 39. Cf. B i.310-312.

224 eligible” is necessary to avert “the destruction of society.”612 In the context of the Poor Law, the key is to create a system of relief that prevents paupers from choosing to be indigent.

The role of labor, who works doing what and how, forms a focal point of Bentham’s social thought. A person’s place in the labor force is a more important identifier than almost anything else, including her legal status. “The legal distinction between felons and non-felons is…little more than nominal” while the difference between being employed (especially employed in an

“avowed” profession) and unemployed suggests “a habit interwoven with the very texture of a man’s life.”613 The importance of identity to labor is such that a “universal Register of employment” is as essential a statistical tool as national identification papers. In lieu of such publicly available information, Bentham suggests that a person should be considered unemployed and subject to consignment into the Panopticon system unless proven otherwise.614

Given his dismissal of both the idle rich and the hungry poor, Bentham seems to want to bring the whole of the population into the middle category, those who work for their sustenance. This can also be understood in psychological terms – the middle classes, those who support themselves through labor, exhibit most clearly the connection between labor and reward that

Bentham sees as the acme of pro-social behavior.

B)

With the example of class in mind, we might can say that one way in which the

Panopticons produce utility for society is by reproducing society itself – its distinctions, its

612 Ibid.

613 (Bentham 2010b), pp. 66-67.

614 Ibid. pp. 236-7.

225 divisions, and its classes. If, for whatever reason, upper-class prisoners (“decayed gentility hands”) make their way into the pauper Panopticon, they are to have separate treatment, meals, and maintenance.615 This is partly because idleness combined with opulence is no vice, but largely because of the role of what Bentham called “expectation” in the construction of social life.

Expectation!... Expectation is the basis of every proprietary right: it is this affords whatever reason there can be for giving a thing to one man rather than another. Keep the current of expectation inviolate, in these words are contained the quintessence of everything which utility can dictate on this extensive ground.616

Expectations play a fundamental role in Bentham’s utilitarian theory.617 Because a person’s expectations are drawn from the constitutive elements of her identity, violated expectations cause a great deal of pain and should be considered a significant threat to human security, and thus to utility. Property and wealth are an important foundation of expectation,618 and the utilitarian legislator will need to treat those with property and wealth according to their expectation of how they should be treated. Because presumably few wealthy people will end up incarcerated, it is

“economical” to treat them as a class apart.

Such treatment would not be economical for the lower classes who are expected to fill the

Panopticons – these inmates will be delinquents, paupers, and especially children.619 It is no coincidence that all these categories of person share the general characteristic of an inability to reason completely. Bentham explicitly likens delinquents to children or the mentally ill, and

615 (Bentham 2010b), p. 56.

616 UC 29.6, from a bruillion with the heading “Civil Reforms.”

617 See (Kelly 1990), pp. 83-94, and (Quinn 2008), pp. 335-341.

618 B i.308-309.

619 B iv.140.

226 more precisely, to grown children.620 The expectations of a child are not realistic. The expectations of a child must be managed.

One way to manage expectations is through education, “the art of conducting man” towards well-being. Education is also “government in miniature: legislation and administration in miniature” and here, the question of management again breaks down along class lines.621 In a remarkable excursus in his account of the pauper Panopticon, Pauper Management Improved,

Bentham gives what he describes as a sort of educational treatise, taking up the heretofore neglected question of education for the poor. Thinking of Rousseau, Bentham writes that rich are to be educated in and for distinction and competition – besting one another. It is not, on the other hand, the task of Panopticon to produce an Emile.622

Rich students learn along with play, but the poor should have no play “but that of the best sort, which is work at the same time.”623 Bentham systematically dismisses everything from badminton to marbles. “There may be great hardship in disappoint and frustrating an appetite already created, there can be none in ordering matters so as to prevent the creation of it.”624 This is Bentham’s crucial strategy for the education of the poor, and for life in the panoptic institutions in general. The management of expectations is the optimal strategy for the production of utility. Managed correctly, the impoverished youth are “a vast mine of national wealth,” and

620 B iv.175.

621 (Bentham 2010b), pp. 168, 169. It is worth noting, given the loaded meanings of the term “class”, that it is Bentham’s own preferred term, both in terms of the “class of person maintained by their own labor” (above) and in terms of the “gentlefolk” versus the “the Poor” (ibid., pp. 167-8).

622 In a note to the initial Panopticon letters, Bentham conceded “nor do I imagine [Rousseau] would have put his Emilius into an inspection-house; but I think he would have been glad of such a school for [the unfaithful] Sophia” (B iv.64).

623 (Bentham 2001), p. 213.

624 (Bentham 2010b), p. 180, cf. pp. 171-179.

227 the “parentage of Plutus (Wealth) is no secret. He is the child of Earth by Labour…and Adam

Smith for his head Genealogist.”625

One way of interpreting the social theory of the Panopticon is as an attempt to bring people into the class of the “independent” or “working poor”.626 This alone does not explain

Bentham’s distinctions between the poor and middle classes, plainly visible in his writings on education. Bentham’s course of instruction for the poor is, given the context, impressive. It includes natural history, chemistry, “mechanicks” (physics), mathematics, and medicine.

Bentham heaps scorn here and elsewhere on classical languages, literature, history and other elements of the education of the wealthy, and seems to believe in something like his pauper education as the general course of best instruction.627 Yet even here it is useful to compare the youths of the pauper Panopticon with their peers in the “Chrestomathic,” single-purpose “school panopticon”. These latter, described repeatedly as from the “middle classes”, are given

Bentham’s fullest version of a curriculum for “those whose means are derived from industry perpetually employed.”628 The poor students will not be taught grammar at all, as it is only of use to the “superior classes.”629 The students of the school panopticon will learn their grammar, if in

English.630

625 Ibid.

626 (Quinn 1997), p. 7.

627 Ibid., pp. 183-186, “studies useless”, cf. (Bentham 1983a), p. 35-40.

628 (Bentham 1983a), p. 49.

629 (Bentham 2010b), p. 558n.

630 (Bentham 1983a), p. 74.

228 Another, more plausible reading of the principles of education and rehabilitation across the panoptic institutions is that the class system is favorable for utility, as Bentham understands it. “In the world at large, the inconveniences dependent on the unavoidable dominion of the rich over the poor are tempered at least, if not outweighed, by the advantages that are attendant on them.”631 The logic of class-creation pervades the texts on the Panopticon. Whether he is dividing paupers in “two classes with a firm and steady hand” or admitting the “superior importance” of education in the superior classes, Bentham uses incarceration as a sorting device, making distinct forms of behavioral intervention based on class identity.632

To attempt a structural comparison, class plays a similar role for Bentham to that played by shame in the classical and early modern theories of incarceration. It is an extant fact of social organization that Bentham incorporates into his institutions of correction. He does not need to legislate class ex nihilo, but can make use of it as both a paradigm for social order and a parallel in the outside world for the practices within the Panopticon. Like shame, class turns out to play an important role in how practical reason situates individuals within the social structure, and

Bentham recognizes the importance of class for the type of reasoning in which both direct and indirect legislation aim to intervene.

The concept of “expectation” is just as important here as it was to Plato’s conception of shame in the Laws. There, shame was used to lead people to “expect” a sort of pain given a certain behavior. Here, inmates are led to expect and accept both a moral relation between labor and survival, and to internalize that relationship. As important as docile bodies may be for the

631 (Bentham 2010b), p. 267. (Quinn 2008) aptly describes the tension between Bentham’s moral egalitarianism and hierarchical social theory.

632 For the first, (Bentham 2001), p. 195, for the second, (Bentham 2010b) p. 168.

229 construction of class in the industrial age, from a strictly utilitarian perspective, satisfied minds are even more important.

C)

A conceivable objection to the account of Bentham’s theory laid out above is that it has not done justice to the distinction between incarceration as punishment (the activity of prison

Panopticon) and other uses of incarceration (provision of relief, education). To adequately answer this objection it is necessary to return to the question of the conceptual distinctness of punishment introduced above. Bentham’s discussion of punishment varies between the ordinary sense of the term and his usage of the word to mean a particular form of legislative intervention.

At one point, Bentham seems to acknowledge that what he might call an “instrument of discipline” would be generally called a “punishment,” but methods of effectively compelling behavior are scarcer than the modes of inflicting pain (which are near-infinite), therefore modes of discipline/compulsion must be distinguished from punishments, stricto sensu.633

Bentham himself foresaw the sort of interpretation that confused his institutions of compulsion for institutions of punishment. “Such compulsion is no punishment –no injustice– but a measure partly of humanity, partly of security.” Bentham’s reason for this is that the pauper panopticon “does not administer [pain] with any of those views with which punishment is administered.”634 It does not aim to deter, either the inmate or others. “This may be the result – and happy it is…when it is really the effect, but it is not the object in view.”635 In effect,

633 See B iv.74.

634 (Bentham 2010b), p. 49.

635 Ibid.

230 Bentham is saying that the effect may be to punish, but if that is not the intention, it cannot be called punishment.

Bentham sensed the implausibility of this argument, but could not quite get himself free of it. “What is it then, if not a punishment?...It is a measure of simple precaution and security, operating indirectly to the benefit of him who is the subject of it…instituted and observed for the benefit of community at large.”636 This sentence could just as well apply to the prison panopticon, with the replacement of “operating directly” for “indirectly.” Here, it is the poor who are “froward children” “in a state of wardship,” the same comparisons Bentham used to justify coercive force applied to delinquents through punishment.637 Lastly, the difference between incarceration as punishment and as welfare is that the latter “has no limit.” The very instant a pauper obtains “a means of lively-hood,” he is released. This, as was shown above, is not entirely accurate.

Bentham himself asked “as to the means of producing economy, where then is the difference, between a House of Correction [and] an industry house…”638 In the end, the difference is only a procedural one – the former is housed with those who have committed a transgression in the past, and the latter with those who, though under compulsion, have not yet transgressed. Given the fact that in both cases Bentham entertains the idea of incarcerating people who have not yet undergone a trial, even this question of time, a “before” and “after”

636 Ibid.

637 Ibid.

638 (Bentham 2001), p. 202.

231 begins to break down.639 The pain produced by these two interventions, whatever the intention, seems to be of the same nature. Bentham fulminates that such objections emerge from a demagogic obsession with “liberty” and an unfounded fear of “inquisition.”640 They might equally come from a suspicion that “punishment” is a secondary category in Bentham’s work, and that the more useful categories are “direct” and “indirect” legislative interventions in the service of the frugal management of pleasures and pains.

Utilitarian theories of punishment have long been accused of ignoring the distinction between persons, or of sacrificing the innocent for the sake of deterrence.641 Bentham, ever conscious that “punishments unmerited are grievances,”642 is not obviously guilty of such a charge in his philosophy of punishment. But, viewed against the scale of his ambitions in the

Panopticon project, it is debatable whether Bentham should even really be said to have a theory of punishment apart from his theory of incarceration. In one sense, he has an extensive discussion of reform, deterrence, and the like. In another sense, however, punishment in the

Panopticon is just a frugal method for the management of utility, with the same techniques as other, “non-penal” methods of intervention. The central distinction in which methods of intervention are applied to which people is that of class. The lowest classes will undergo

639 Ibid. p. 203. For the incarceration of the accused before trial in both types of Panopticon see B iv.59 (prison), and (Bentham 2001), pp. 96-98 (pauper Panopticon). For the untenability of Bentham’s attempt to distinguish between modes of intervention on the basis of “time”, see (Bozzo-Rey 2017).

640 Ibid. pp. 49-50. Bentham’s suspicion of “liberty” was intense. “I would no more use the word liberty in my conversation…than I would brandy in my diet…both cloud the understanding and inflame the passions” (UC 100.70). Bentham’s preferred term for what is often called “negative liberty” was “security.”

641 In Rawls’ famous formulation. (Rawls 1999) p. 24.

642 (Bentham 2010b) p. 36, cf. IPML

232 incarceration, whether “penal” or “charitable,” the middle and upper classes will be trained both through schooling and through the “invisible chain” of the laws themselves.

Conclusion: The rationale of incarceration

Bentham’s panopticon was not the only model for thinking about what the sort of collective rationality embodied by total institutions might mean. At around the same time that

Bentham was writing feverishly about the Poor Laws and badgering officials in various ministries about the fate of his dear Panopticon, John Thelwall, a radical founder of the Jacobin

London Corresponding Society, wrote that “every large workshop and manufactory is a sort of political society, which no act of parliament can silence, and no magistrate disperse.”643 Bentham was also aware that his Panopticon manufactory implied a particular “politics of a prison.” He concluded that it should be “a sort of monarchy,” the site of more-than-despotic power.644

The link between the excitement of Thelwall and the conservatism of Bentham lies in one of Bentham’s rhetorical targets in his Poor Laws writings. The pauper panopticon “produces thus all the good effects which ignorance expects, and insane ambition pretends to expect, from an

Agrarian, without any of the misery, destruction and injustice.”645 As England’s working class began to grow conscious of itself and cohere around particular political positions, Bentham responded to the growing signs of social crisis by turning to an instrument of organized

643 (Thelwall 1796), p. 21.

644 B iv.165, cf. 63. For the connections between this context and the trajectory of Bentham’s political views in the 1790s and after, see “Bentham’s Radicalism” in (Dinwiddy 2004).

645 (Bentham 2010b), p. 319. The reference may or may not be directly to Thomas Paine’s Agrarian Justice opposed to Agrarian Law, and to Agrarian Monopoly, but it is certainly to a similar position.

233 coercion.646 Seen in this light, Bentham’s panoptic writings of the 1790s are an unparalleled attempt to legislate class interests from above.647

The emergence of class from the background to the foreground of Bentham’s Panopticon plans necessitates a final reappraisal of the “system of rationality”648 operating at the nexus of labor, incarceration, behavior, and frugality. This chapter has focused on frugality as a crucial conceptual theme in Bentham’s incarceration texts, but frugality is only a formal quality – it requires content (frugality of what?). Above, this content was described by the shorthand

“utility”. Upon closer examination, Bentham’s idea of utility has “four subordinate objects –

Subsistence. Abundance. Equality. Security.”649 Bentham has no doubt that “the most important object is security…when security and equality are in opposition, there should be no hesitation: equality should give way.”650 Security, and security of expectation depends on “the fixed and durable possession” of property.651 Property itself is “an established expectation,” and the preservation of property through law is “the most splendid triumph of humanity over itself.”652

Bentham knew that under conditions of scarcity, where “subsistence” is threatened, the poor will be tempted to take from the rich; “and in proportion as endeavours to this purpose are

646 (Bahmueller 1981), p. 2.

647 For the class elements present in the criminal code Bentham sought to reform, see (Hay 1975), especially “Property, Authority and the Criminal Law”. For the role of Paine as ideologue and the question of class during the period that Bentham wrote, see (E. P. (Edward P. Thompson 1966).

648 See (Foucault 2014), p. 254.

649 From the Principles of the Civil Code, B i.302.

650 Ibid., p. 302, p. 311.

651 Ibid. p. 307.

652 Ibid. p. 309.

234 employed, or believed to be intended to be employed…security…is diminished.”653 It is this impulse that lies behind his Poor Law proposals, as much as it is the particular political context.

The “economy” of the Panopticon is ultimately in the service of security-as-property. 654At every step of Bentham’s reasoning, the institution of incarceration was tested and honed for frugality of cost, frugality of pain, and optimization of outputs. In the end, this logic of frugality results in a massive intervention in the service of a particular notion of security, because it is a particular class, the property owning class, who both produce the most utility through their holdings and have the most to lose (in terms of violated expectations) by giving them up.

Bentham proposes the coordination of an incredible amount of activity in order to leave certain aspects of social life well enough alone. Behind the spectrum of legislative interventions, from punishment to legislative architecture, lies a consistent justification of political intervention of one sort in the name of lesser intervention of another sort. This is the suggestive paradox in

Bentham’s vision of the prison – the best way to ensure the stability of liberal non-intervention is to intervene appropriately via institutions that impress the modes and methods of frugality on the minds and the bodies of the delinquent, the poor, and the young.655

653 BL Add. MS 33550, folio 125, from 1828, late into Bentham’s “radical” period.

654 See B i.314, and (Kelly 1990) pp. 71-136, and (Quinn 2008), both of whom describe the security/equality/property relationship.

655 The interwoven questions of economic and penal intervention are to a great extent, the thesis of (Harcourt 2011) with which this chapter is in substantial agreement, pp. 48-52. For the contradiction of Bentham’s intervention in one sphere and abstention in another see especially pp. 103-120.

235 Conclusion: The decline of penal modernism

With Bentham and his vision of an integrated system of welfare and punishment, this study of the “long history” of incarceration enters an unmistakably modern era.656 At the end of the 18th century, a boom in prison construction took hold that, in the United States, has yet to abate. Penitentiaries sprouted up, built first along panoptic plans and then along progressive ones, staffed first with Christian volunteers and then with credentialed professionals, run first according to programs of individualized treatment and then in the silent solitude of the Supermax

(whose moniker “penitentiary” is purely vestigial). In these final pages, we will suggest some ways in which the conceptual program of this dissertation might contribute to understanding the more immediate, contemporary history of imprisonment and the resulting social and political problems that have emerged in our carceral societies.

We observed two main themes at work across these historical theories of incarceration.

Some of the elements of the early history of incarceration have immediate and obvious echoes in the writers from 16th to the 18th century, the period widely agreed to be the origin point of the reformatory prison. The emphasis on future-directed punishment which we observed in democratic Athens, later refined by Plato into a rigorous combination of rehabilitation and deterrence, is strikingly similar to general beliefs about the aim of punishment in the first generation of anglophone prison reformers.657 Even certain details of the reformative theory, like

Plato’s use of the medical metaphor as a way of envisioning how punishment accomplishes its

656 For “penal welfarism” as the fundamental ethos of imprisonment before the era of mass incarceration, see (Garland 2002).

657 I will not fully capitulate the “birth of the prison” literature to which I am drawing comparisons. For a fuller bibliography, see the introduction.

236 aims, found a place not only in the psychologizing practices of the progressive era, but have even persisted into the era of mass incarceration.658

The effect of seeing even such well-studied phenomenon as these reformative tendencies from a longitudinal perspective may be to shift the interpretive of their meaning and significance.

Since the publication of the major works of penal revisionism, rehabilitation has often been viewed as an ideological construction masking some agenda of social control.659 This dissertation shows that the connection between improvement and imprisonment can form under radically different ideological conditions, ranging from the Athenian polis to the Renaissance court. A project of social control may still be implicated in all these theories, but the link between a change in the inner state of the criminal and the technique of imprisonment begins to take on a different character.

Prisons are attractive to theorists (and to polities) when the inner state of the criminal is a matter of real interest and the bodily integrity of the citizen is a matter of some concern. This may be for nefarious reasons, or it may not, but we might ask whether a society that has ceased to care about the inner state of criminals is necessarily any more respectful of their personhood.

Put another way, it is easy to see Plato’s interest in the soul as totalitarian and Bentham’s interest in behavior as disciplinarian, but these visions of the prison, as well as those of the other, less philosophical voices about incarceration that were their contemporaries, express a vision of a social whole that is worth taking seriously as a theoretical tradition.

658 For the medical model in Plato, see (Saunders 1973), for the progressive era, see (Rothman 1980), and for its surprising persistence see (Simon 2013).

659 For a the classic expression of this view, see (Cohen 1985).

237 The second major theme, the challenge of enlightenment philosophies as they came to grips with the failure or unavailability of traditional forms of soul-craft – and the concomitant designation of the prison as a site for the production of pro-social practical reasoning, is less familiar, but no less present and important. In light of the role atheism in Plato’s theory of the prison, and of the distinction between heretics and non-heretics in More, the current study provides an additional impetus to extend Ignatieff’s observations about the tension between religious motivations and secular methods in incarceration into the 19th and 20th centuries.660

For this reason, the discussion of the ancient prison and Platonic methods of soul-craft tried to mediate between religious and political contexts (Plato was, after all, trying to mend the social fabric that he feared had been torn by intellectual heterodoxy). And although this theme was mostly absent from the analysis of Bentham, we could have demonstrated a similar fluidity in the changing role of Quaker reformers and the ambiguous relationship between psychology and confessional practice even in the progressive, “welfarist era” of prison penology.661 These continuities between the premodern and modern eras serve to draw attention to how different the completely secularized sphere of late-modern public policy is from the intellectual environments that have, historically, given birth to incarceration.. The shift from religiously-motivated reform to politically expedient incapacitation may merely be a symptom of different, deeper tears in the fabric of the polity, but the problem points to an underexplored aspect of the theory of the prison.662

660 For studies that address the religious movements involved in modern prison reform see (Ignatieff 1978), (Meranze 1996) and (Foucault 2015).

661 I have gestured towards this story in (Abolafia 2018).

662 One work of political science that provides a template for the tension between secular administration and religious motivations in American political history is (Morone 2003).

238 The lesson of these five chapters is that penal modernism, or elements of it including fully theorized institutions, psychological accounts of crime and reform, and the integration of techniques of confinement and broader systems of law, existed in a coherent form before the 18th century. What remains unsaid is how different the penal modernist tradition is from the current moment. The effect of closing the gap between the ancient and the early-modern worlds is to make the gap between the contemporary moment and penal modernism that much more apparent.663

If we look at an important text on penal reform from the very decade that the “birth of the prison” theorists were publishing their critiques of penal modernism, we will find that era that was able to muster the first comprehensive critiques of incarceration was also the era that had already repudiated what we have found to be some of its essential characteristics. In 1971 the political action arm of the American Quaker movement, the American Friends Service

Committee, published its report on the state of crime and punishment in America. According to the report, Struggle for Justice, it was time to acknowledge that the grand experiment to reform criminals through rehabilitative programming and discretionary sentencing had failed.

The Friends’ Service Committee’s report did not merely repudiate the efforts of earlier

Quaker reformers (reformers who were Bentham’s contemporaries, and, in a strange way, partners in his project). It rejected the “whimsical touch of Utopianism” common to “visionary” reformers with “far-reaching” plans.664 Utopia and utopianism are catchwords connected to the sort of institutional project that characterizes the early theory of the prison. But the chasm

663 This gap between the penal modernists and punishment in the age of mass incarceration has been a theme of the sociological and criminological literature for the last quarter century. See (Feeley and Simon 1992), (Garland 2002), and (Lerman 2014), among others.

664 (American Friends Service Committee 1971), p. 11.

239 between penal modernists and contemporary reformers is not limited to the scope of their vision.

The nascent liberalism of More and the strident liberalism of Bentham have been turned against the project of education and socially mediated practical reason that characterized earlier accounts of incarceration. As the report twice repeats, “the law should deal only with a narrow aspect of an individual, his crime.”665 This reorientation from the ambition of knowing the “soul” of the delinquent is a departure both from the confessional ambitions of earlier religious reformers and from the rationalized “panopticism” of Bentham. Compared with the libertarianism of these latter-day reformers, Bentham’s approach to the criminal law as teacher of reason certainly seems closer to More than it does to the present day.

To fully address these questions would require an additional study, one that traced how the institutional utopianism of Bentham intertwined with religious and counter-religious reactions to the changing social matrices of society in the 19th century. Surely Tocqueville’s prison-research and social theory are necessary here,666 and Hawthorne’s ambivalent depiction of the zeal of 19th century religious “philanthropists” may be helpful,667 but so too is a careful consideration of how and why reformative motivations, rationalist and religious, were discredited and fell into disrepute by the end of the 20th century. The long arc of this project suggests that, just as More’s prison was a transitional hybrid, combining its Platonic form with a proto-industrial logic of labor, so too might later penal theories prove to be transitional. This

665 (American Friends Service Committee 1971), pp. 145, 147.

666 See (Harcourt 2014) for an initial analysis of Tocqueville’s prison-writings as political theory.

667 Especially the depiction of the prison reformer Hollingsworth in The Blithedale Romance.

240 possibility holds for the various versions of prison abolitionism as much as it does for the disparate theorists of incarceration as retribution.668

This project in its current form also suggests several more immediate interventions in debates over the prison and punishment. The first of these concerns the role of punishment in a democracy. As we mentioned in the introduction, political science has identified some of the consequences of mass incarceration for democracy,669 but democratic theory has more or less systematically ignored incarceration as an object of institutional design or philosophical critique.

If nothing else, the case studies of Plato, More, and Bentham (not to mention the politicians of democratic Athens), should suggest just how anomalous this silence about systems and techniques of punishment is in the broader history of political thought.

Some moral and political theorists who have turned their attention to punishment have embraced the concepts of shame and reconciliation as a way out of the current complex of retributivism and incarceration.670 As this dissertation showed, however, shame is a fragile emotion, dependent for its force on social structures and conditions that shame itself cannot produce.671 Shame, as theorists of modernity should know, is not what it once was. And, if the account of an ancient penal modernism advanced here is found convincing, we now say that it never really was what it once was. This confusion over the possible avenues for the practice of

668 A similar thesis was forcefully stated in relation to punishment in general by (Garland 2002). In extending the work of this dissertation forward, more attention would have to paid to the theoretical difference between incarceration and punishment in general in an era when the two have become almost interchangeable.

669 And democracy for mass incarceration. See (Barker 2009) and (Lerman and Weaver 2014), among others cited in the introduction.

670 For an influential account, see (John Braithwaite 1989) as well as (Scheff 1990), (J. Braithwaite 2000) and, for a related project in “punitive restoration,” (Brooks 2017).

671 Or, to put it differently, theorists have not paid enough attention to the conditions under which shame is either “stigmatizing” or “reintegrative,” or indeed, whether shame plays any meaningful reintegrative role in late-modern public life. See (Harcourt 1998) for a skeptical review of such efforts.

241 punishment in democratic societies suggests that the social theorists who map out the meaning of crime in society and the penal theorists who presume to propose to punish it have ceased to engage with one another.672

To return to the royal road, the political theory of punishment must work at the level of social detail demonstrated by Plato and More, and it should engage with the contemporary logic of rationality in the spirit of Bentham. It has become a cliché to use Bentham’s picture of the prison as a metaphor for the liberal society he hoped (and helped) to create. Following other scholars, this dissertation has suggested that as much as Bentham’s plan may be concerned with surveillance and discipline, it is equally consonant with Plato’s theory in its interest in education and practical reason. Plato’s theory of law and correction aims at influencing the faculty of practical reasoning (logismos), while Bentham’s aims at efficiency-as-frugality, both in terms of the state’s intervention in the decisions of the individual, and in terms of the individual’s ideal course of behavior with respect to her own options. Both are systematic accounts of how political institutions function, both structure the penal functions of the state along the same lines as its legislative functions, and both make their institutional designs contingent on a plausible working picture of human rationality. To demonstrate the broader applications of this distinction between the “modernist” institutions of Plato and Bentham and our own moment, we might, for instance go beyond the “school-to-prison pipeline” as a sociological fact and ask in what way the logic of the post-industrial school matches that of the prison as a warehouse, and how that logic differs from the modernist logic that motivated the construction of the public school system.

These thoughts suggest a double possibility for political theory. Institutional theorists at home in the comprehensive systems of Jürgen Habermas or John Rawls might try to piece

672 The field has not advanced significantly since the analysis in (Lacey 1999).

242 together an institutional design for punishment that is democratically legitimate.673 These theorists will want to take note of the ways in which Plato learned from his democratic contemporaries, and to study how Bentham knit together the panopticon prison and the panoptic effects of public opinion. Perhaps there remains, buried within the carceral form, some as-yet- unrevealed emancipatory, or at least participatory potential. Of course, attempts to redesign the prison must remain ever conscious that “out of the best intentions in the world can grow an increase in human misery.”674

Theorists, on the other hand, who consider themselves heirs to the critique of instrumental reason or choose to concern themselves with the dangerous friction between the real and rational, must try, in studying the modern prison, to contend with a system of punishment that no longer adheres to any clear rationality other than that of racial, ethnic, or class exclusion.675 Even in the face of the failure of earlier attempts to crack the façade of what remains a carceral archipelago, critical theorists have much to learn from Plato’s elegant integration of the historical and conceptual in the Laws,676 and perhaps equally much to gain from assimilating the connections exposed here between Bentham as penal theorist and the elements of what is sometimes called neo-liberal political economy. The fact that the prisons of today are Benthamite neither in their aims nor in their methods only heightens the importance of understanding what form of reason is at work within their walls. Lastly, given the recent interest

673 Examples of such an approach can be found in (Greiff 2002) and (Ramsay 2016), respectively.

674 From (American Friends Service Committee 1971), a report which, ironically marked the end of a liberal consensus around punishment in the United States.

675 See, for instance, (Fassin 2017).

676 We agree with (Thakkar 2018) about the fecundity of Plato’s thought as a sort of critical theory. It is our claim that the non-ideal theory of the Laws is equally important to this project as the Republic.

243 in the “post-secular” nature of late-modern society, the prison presents itself as a unique object of analysis, fully secularized and fully detached from the spiritual and economic sources of its own creation.

But perhaps the lesson of this dissertation is that political and social theory are ill- equipped to understand the prison precisely because of a distance between theory and practice that opened up with the demise of penal modernism. Both Plato, at the beginning of the tradition of penal modernism, and someone like Zebulon Brockway, the designer of the “Elmira System” at its end, could agree that to understand to soul of the prisoner was to understand how to rehabilitate him. Michel Foucault, the great observer of penal modernism, could agree with

Jeremy Bentham, its great practitioner, that this soul need not be incorporeal in order to represent the point at which an institutionalized regime interacts with an individual’s behavior. These are no longer categories of the sort to which theorists, or indeed practitioners of punishment, can comfortably appeal.

By calling into question both the distance between pre-modern and modern theorists, and the relation between penal modernism and the contemporary moment, we mean to do two things.

The first is to trouble the genealogical account or “history of the present” that begins in the 18th century. The roots of carceral institutions go much deeper than we might suppose, even if the trunks and branches of contemporary custodial systems have grown in unpredictable ways. The second is a broader point about the role of modernity in the history of political thought. We need not abandon rigorous reading to find that textual affinities stretch across historical time in unexpected ways, and yet we should not assume that the proximity, of, say, Jeremy Bentham’s conceptual vocabulary to our own means that his institutions persist in our world any more than do Plato’s.

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