More's Utopia, The Art of Government, and the Punishment of Slave Rebellion
In the context of arguing in a law and economics manner (recall from NewAPPS) that capital punishment for stealing encourages more crime (and goes against the rule of Christian mercy), Raphael Hythloday introduces the practice of a people called the Polylerites, who supposedly live not far from Persia and, in fact, pay tribute to it, that is, are under Persian imperial protection. (The Polylerites are landlocked and relatively autarkic, so presumably their annual tribute will be in kind.) The Polylerites “fight no wars, and live in a comfortable rather than a glorious manner, more contented than renowned or glorious.” In their rejection of glory, the Polylerites anticipate us.
The Polylerites (“not badly governed”) punish their criminals by making them do slave labor on public works in order to repay the owner. (In some cantons, private employers hire such labor instead below market rates.) Raphael clearly thinks that leads to less corruption and legal malfeasance than the then common alternative to pay a fine to the court or sovereign.
The convicted criminal is not shackled during the day. The only corporeal punishment they suffer is when they refuse to work. However, the convicts are under a kind of indirect permanent surveillance in virtue of the special clothes and special badges they are made to wear; the hair is “trimmed a little above the ears, and the tip of one ear is cut off.”
As an aside, it’s a bit of shame that in Discipline and Punishment, Foucault didn’t comment on Book 1 of Utopia, because so many of its themes are clearly part and parcel of the criminal reform movements he studied (and himself tried to effectuate). It’s also a bit odd because Foucault uses ‘utopia’ and its cognates throughout the work, and throughout his oeuvre there are many hints he himself was clearly fascinated by the book.
Be that as it may, Raphael goes on to say the following:
Their friends are allowed to give them food, drink or clothing, as long as it is of the proper colour; but to give them money is death, to both the giver and the taker. It is just as dangerous a crime for any free man to take money from them, for whatever reason; and it is also a capital crime for any of these slaves (as the condemned are called) to touch weapons. In each district of the country they wear a special badge. It is a capital crime to discard the badge, to be seen beyond the bounds of one’s own district, or to talk with a slave of another district. Plotting escape is no more secure than escape itself: indeed, for any slave to be privy to an escape-plot is death, and for a free man, slavery. On the other hand, there are rewards for informers –money for a free man, freedom for a slave, and for both of them pardon and amnesty for knowing about the plot. Thus it can never be safer to persist in an illicit scheme than to repent of it. (Translated by Robert M. Adams.)
My students never fail to be struck by the fact that Raphael ends up endorsing capital punishment in an example that it is meant to illustrate his opposition to it. Raphael does not seem aware of the tension in his position.
Now, one natural response is to suggest that Raphael is, perhaps, not so wise as he himself thinks and that his treatment of such by the fictional Peter Gilles and the fictional More also contains a bit of gentle mockery. There is, in fact, quite a bit of evidence that Raphael misses a beat sometimes. (About that below.) The problem with such a reading is that one can never tell for sure what the author More intended to convey. (This is a more general problem with esoteric hermeneutics.) I don’t mean to suggest this is a fatal objection because part of the wider debate between fictional More and Raphael is the status of (fictional) More’s explicit advocacy of indirect teaching.
There is an alternative reading that I was pleased to notice some of my students converged on in their small group discussions. In my three hour seminar I make them do break-out sessions in class.
The alternative interpretation starts from the idea that the function of capital punishment need not be the same in all cases. Let me explain. Raphael’s criticism of the death sentence has a Platonic tenor (and this is illustrated in the example of the Polylerites): the law should deter, reform or educate the criminal, and, if necessary, repay the victim of crime. (It should not express retaliation.) The last two features of proper punishment are impossible if you execute the criminal. And Raphael has shown that in many circumstances rather than deterring, capital punishment invites more crimes during a criminal’s activity. (It incentivizes getting rid of witnesses, larger heists, etc.)
The evident function of the remaining form of capital punishment among the Polylerites is to prevent rebellion by the convicts and those among the rebellious free they might support in rebellion; to repeat it is a “capital crime for any of these slaves (as the condemned are called) to touch weapons.” No transactions among the condemned and the free are allowed other than the donation of food, drink, and clothes that make surveillance possible.
Thus, among the Polylerites, capital punishment is reserved for planning and engaging in sedition and any activity that may be confused for it. Even a general critic of the death penalty can allow that conceptually a crime that threatens the order or foundation of the state and its laws is different in character than many other crimes. So, lets allow that Raphael is not guilty of obvious self-contradiction. This interpretation also fits his more general tendency to to treat laws and lawgiving in functional terms (as I noted yesterday).
In fact this line of thought is supported by the fact that in Book II the Utopians are shown to confront the same problem despite the absence of private property in their polity, and have a very similar scheme of punishment as the Polylerites. Raphael comments
Slaves, moreover, contribute more by their labour than by their death, and they are permanent and visible reminders that crime does not pay. If the slaves rebel against their condition, then, since neither bars nor chains can tame them, they are finally put to death like wild beasts. But if they are patient, they are not left altogether without hope.
Sedition is de facto treated (by Polylerites and Utopians) as a rejection of civilization and, what we may call, the principles of humanity. The punishment is to be treated savagely like a wild animal. Lurking here, then, is a portrayal of the religion of humanity of the future and the excesses it will give rise to.
I could stop here. But More (the author) does invite a further reflection. Just a few pages before Raphael explicitly alludes to The Battle of Deptford Bridge and the (first) Cornish rebellion of 1497 more generally. Raphael does not treat of its causes (to simplify new and heavy taxes to fund Henry VII’s wars), unless he thinks it's an effect of enclosure (which he discusses it a length). He only mentions it to explain that wars disproportionally produce criminals for various reasons. (These reasons are worth exploring, but I want to wrap up this post.) He does, at another point, mention the “lamentable slaughter of the rebels.” So, his sympathies are not on the side of royal authority.
The fact that the Polylerites are on guard against, and punish severely, the participation of free men in possible sedition of their own convicts suggest that, perhaps, not all is contented among the Polylerites. The fact that they think of their own convicts as slaves also means that they are always reminded that they should be on guard against rebellion and stick together against them. (This is, in fact, mentioned in the book Raphael admires so much, Republic 578DE.)
I have come to suspect this is an instance where More, the author, invites us to see that Raphael’s astute functional analysis is not always as thoroughgoing as he himself thinks. This suspicion is strengthened by the fact that when Raphael finally gets to recounting their laws, the most admired Utopians do chain their prisoners. (It’s hard to miss because they use golden chains—an idea that I have long thought inspired Rousseau’s most famous sentence.)
The fact that the Polylerites structurally fear rebellion (presumably for a good reason) suggests that as readers we are also invited to qualify the extent to which they are really not badly governed even by Raphael’s own lights. This is made explicit in his account of the fictional Achorians and Macarians, where mechanism to prevent rebellion are also mentioned.
One final thought. The Polylerites form of punishment through slave labor is introduced after claiming that is was among the punishments practiced by “the ancient Romans, who were most expert in the arts of government.” Raphael insists that this expertise and their punishments should go unquestioned.* And by implication his own understanding of it. But this assumes that Raphael has defeated fictional More’s arguments for a different approach to the art of government.
*”Why should we question the value of the punishments which we know were long used by the ancient Romans, who were most expert in the arts of government?”