Thrasymachus and the slave codes 1

Let me take a brief left turn (in the sense of the "lefty" natural law theorist in the legal-theoretic discussion of slave codes). I'll revisit a bit of Plato's Republic, book 1, especially the exchanges between Socrates and his sophistic nemesis Thrasymachus, the relativist who holds so untenably that justice is the power of the stronger. In a later post I'll tie this back to the "right-wing-ish" legal realist Holmes and Hart. (Of course I mean all of this playfully...) 

I'm also writing in a more speculative mode. I believe in philosophy (as in law) that data should always lead, and theory should always follow. I don't yet have all the data, though. So let's call these hypotheses.

What strength or power does the "Negro" slave have? (I use the term of the American colonial period.) Put crudely, the Negro slave is a kind of beast to be controlled. Slave codes were clearly intended to cause the threat posed by the slave to diminish. If the Negro is thus understood animalistically, then, rather than being a full-on, full-blown author of action, the Negro is an object to be figured out and controlled. The Negro thus becomes an object of the law only when their owner cannot fully control them.

So, the Negro becomes dangerous, and because of that the law has to step in. Otherwise the law defers to the owner's attempts to control them. The slave codes thus describe the limits of slave punishment and handling, understood as reaching past the legitimate efforts an owner might expend. The slave is thus a beast, but that beast-character does not obliterate all limits of actions brought against them. The slave is thus like the horse, plus something: a restricted sort of actor, and the law makes room for that. 

Interestingly though, the Negro only becomes a problem for the law when there is a disruption, and the threat to social order that may result. So there is no issue apart from threat. In a way, there is no description of a normal life that concerns the law. So the property owner can come under law (some sort of regulatory regime) in virtue of making contracts, and the assumption of liability that results. In this regulatory role the law enters everyday life, not just when there is a violation or threat. Everyone thus has the expectation that a contract will be honored. The ordinary business of life here described and protected is something like what Hart has in mind in his notion of primary rules of obligation.

But in the slave case all of that is absent---or at least distorted. The slave is understood as a threat, as a creature capable of posing a threat, like a potentially threatening animal. And yet not too wild an animal. No one in the discussion believes that the Negro is an animal entirely, but that they are a chimera: half-animal, half-human. This theoretical confusion is of course expressed in the reasoning of lawmakers. Once you have this kind of chimerical existence, you get all of the other crazy-ass stuff.

Thrasymachus gets interesting here. Using a different sort of lens than is usually used, he may be seen as a heroic philosopher who models and champions the force of the brute as the basis of justice. Perhaps he may be read consistently this way, and so provide a way to understand the slave as legal actor. (Socrates certainly did not see him this way: he excludes Thrasymachus from the dialectic of reasoning, or at least engages him only problematically. No Socratic is going to like the move I'm toying with here.)

Every philosopher who studies the Republic thinks of Socrates as the heroic figure in the dialogue. I am no exception. But reading Book 1 as a kind of vilification of Thrasymachus and his view, and then trying to resuscitate his view---or at least gloss it in such a way that the view can be regarded as heroic from the standpoint of the slave is kind of interesting. All of the energy he puts into his view, all of the off-stage stuff, the stage direction let us call it, all of the philosophers who read it will ignore to focus on the reasoning part. But the stage direction is revealing. It is clear that Plato is trying to make Thrasymachus out to be some sort of beast, not unlike the role the Negro plays in the colonial period of the American enlightenment. The beast, slightly out of control, a sense of threat and danger. The wild man, undermining the project of elenchus, thwarting the march of reason toward truth. One cannot engage in the logical pursuit of truth, since one has to suspect that Thrasymachus is undermining that. And he even seems to say as much: "okay, have your little feast, Socrates, whatever you say. You've won, even though I don't really believe that you've won.'' He is the wild beast who cannot be reasoned with---it can be soothed, but cannot be shown the truth, cannot be part of the pursuit of truth. The more forceful character wins because they shut down the opposition. 

If Thrasymachus is the hero, the reader has a conflict, because Socrates---the voice of reason---is trying to shut down the hero.

(I guess I'm being a bit rhetorical as well as hypothetical.)

But then this becomes instructive in trying to study the colonial slave codes. Any modern reader will read the codes as the quasi-rational approach of superior force---a stronger force---trying to put down the character you are really rooting for, the slave. No one is going to read the slave codes and think, yeah, that's a good idea. Something that, if a white person did it, they would do a little time in prison, whereas if a black person does that same thing they would be sentenced to death, a distinction written directly in the penal code. Of course not. 

So reading Thrasymachus this way is like reading the slave codes. How it is for the slave in the cold hard light of rational law as one squirms and shudders.