LAWS by Plato - Complete text

Part 4 Page 37

And now we will determine what penalty he ought to pay or suffer who has hurt or wounded another. Any one may easily imagine the questions which have to be asked in all such cases: - What did he wound, or whom, or how, or when? for there are innumerable particulars of this sort which greatly vary from one another. And to allow courts of law to determine all these things, or not to determine any of them, is alike impossible. There is one particular which they must determine in all cases - the question of fact. And then, again, that the legislator should not permit them to determine what punishment is to be inflicted in any of these cases, but should himself decide about, of them, small or great, is next to impossible.

Cle. Then what is to be the inference?

Ath. The inference is, that some things should be left to courts of law; others the legislator must decide for himself.

Cle. And what ought the legislator to decide, and what ought he to leave to courts of law?

Ath. I may reply, that in a state in which the courts are bad and mute, because the judges conceal their opinions and decide causes clandestinely; or what is worse, when they are disorderly and noisy, as in a theatre, clapping or hooting in turn this or that orator - I say that then there is a very serious evil, which affects the whole state. Unfortunate is the necessity of having to legislate for such courts, but where the necessity exists, the legislator should only allow them to ordain the penalties for the smallest offences; if the state for which he is legislating be of this character, he must take most matters into his own hands and speak distinctly. But when a state has good courts, and the judges are well trained and scrupulously tested, the determination of the penalties or punishments which shall be inflicted on the guilty may fairly and with advantage be left to them. And we are not to be blamed for not legislating concerning all that large class of matters which judges far worse educated than ours would be able to determine, assigning to each offence what is due both to the perpetrator and to the sufferer. We believe those for whom we are legislating to be best able to judge, and therefore to them the greater part may be left. At the same time, as I have often said, we should exhibit to the judges, as we have done, the outline and form of the punishments to be inflicted, and then they will not transgress the just rule. That was an excellent practice, which we observed before, and which now that we are resuming the work of legislation, may with advantage be repeated by us.

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