Suppressing the Emotional Bias? The Platonic Theory of Punishment and its Contribution to the Philosophical Development of International Criminal Law

BUIS, EMILIANO JERÓNIMO

Nueva Delhi

Congreso; Internacional Conference *Philosophical Foundations of International Criminal Law: Its Intellectual Roots, Related Limits and Potential*; 2017

Centre for International Law Research and Policy (CILRAP)

The historical and conceptual evolution of international criminal law can be read as a swift passage between emotional punishment to more rationalizing endeavours that led to the entry into force of the Rome Statute. Unlike its predecessors, the International Criminal Court has been described often as a contemporary experience built as a result of diplomatic agreements on the bases of legal legitimacy, due process, multilateralism and institutionalized complementarity. My intention in this paper is to offer an analytical reading of the phenomenon under the light of ancient Greek philosophical thought. In particular, I am interested in showing that the development of international criminal law in the XXth Century can be studied through a classical perspective, since it can be considered similar to the Athenian experience of justice, as explained in Plato?s dialogues. Plato provides us with the earliest example of reformative punishment in Western thought, since his writings show a revision of the Athenian conception of punishment, which is therefore challenged by a new conception. In this *paradigm shift* (Allen, 2000: 245-281) the angry punisher willing to rectify an unbalanced social order is replaced by a rational judge whose intention is to educate or reform a diseased wrongdoer who committed an injustice because he was sick and needed to be cured. Plato offers a subversion of the traditional paradigms of justice on which Athens was based. In his opinion, criminal justice is a cure, a way of responding to social disruption, and not an opportunity to exercise anger and exert power against the enemy. In Protagoras 323d-324b, for instance, Socrates agrees with Protagoras when he considers that people who punish for the sake of irrational passions and look to the past are bestial, as part of an argument for reformative punishment. Punishment in fact should grant a benefit for the offenders (Gorgias 477a) since it implies an education (*máthesis*) born out of a concern on the soul of the wrongdoer (Apology 26a). Except in the case of those incurable, who cannot learn and have to be kept in a distant prison (Laws 908a), wrongdoers should be punished (*kolázein*) with the sole purpose of becoming virtuous. This moral regime, which opposes retributive sanctions resulting from anger requires persuasion and obedience (Laws 862d). According to Saunders (1991: 196-211), the frequent use of myths in Plato?s texts show a universal moral principle stating that injustice will always be punished in the end (Gorgias 523a-527c; Phaedo 81a, 107d-108c, 113d-114c; Phaedrus, 248c-249b; Republic 614a-619b; Laws 903b-905c, inter alia). This allows explaining the universality of Plato?s proposal and, therefore, contributes to promote the analogy between the Platonic view of suppressing the emotional bias, as described, and the evolution of a global contemporary international criminal law endorsed in a common and rational ethical foundation.