Excerpts from "Punishment in Ancient Athens" by Danielle S. Allen
A society’s approach to punishment reveals its soul: how it understands cause and responsibility; what its utopian hopes are; and how it has decided to approach conflict. These four questions (why, in the sense of “what cause?”; why, in the sense of “what purpose?”, how, and what) should open up Athenian punishment in ways that convey a living society that continually had to make choices about how to construct authority. This story about Athens should, by way of contrast, provoke our own thoughts about how punishment serves the construction of authority in modern states.
The Athenians had no doubts about why they punished: it was simply because someone was angry at a wrong and wanted that anger dealt with. Specifically, the anger of the victim necessitated punishment, and the Athenians made this idea central to their penal practice. Although the city’s penal laws allowed any citizen to prosecute on behalf of someone who had been the victim of a crime, or on behalf of the city in general, in 96% of the cases for which we still have copies of the courtroom speeches, the prosecutor was in fact either himself the victim of the wrong done or else he was personally involved in some dispute with the wrong-doer.
“Observe that the laws treat the wrong-doer who acts intentionally and with hubris as deserving greater anger and punishment; this is reasonable because while the injured party everywhere deserves support, the law does not ordain that the anger against the wrongdoer should always be the same” (Dem. 21.42-43).
Anger was thus assumed to be not only the source of particular punishments but also at the root of law itself. The Athenians accordingly felt relatively little uncertainty or unease about why (that is, in response to what causes) they punished: they acted in response to anger.
Why (To What End)?
The Athenians, then, punished in answer to someone’s anger, but to what end did they do so? If a modern citizen were to hear that someone, a parent or teacher, or a state, had punished out of anger, he would expect the motives of the punisher to be essentially vindictive. Anger, we think, leads directly to a desire for payback of the eye-for-an-eye variety. In contrast, the Athenians developed a far more nuanced view of what it meant to take anger as the starting point of punishment. Anger might be the origin of punishment, but they also conceded that it was a disease.
When it came time to punish, the Athenians acted out of anger and to cure anger, but this does not mean that they acted in anger. Rather, they interposed an extensive institutional system between the moment when an angry victim pointed to a wrong-doer and the infliction of punishment. The purpose of this system was to allow the citizens to convert a moment of private anger into a public decision crafted with a view to curing the community through a restoration of peace.
The Athenian focus on anger reveals two things about punishment. First, punishment arises simply from the desires of the punishers, which is to say, from the desires of the community. Questions of how to punish therefore involve us in asking who we want to be and what our relations to our desires are as those are expressed by anger. The Athenians dramatized this idea once a year at a festival called Thargelia where they administered a “cure” for themselves as a whole city. The festival involved an especially violent ritual. It was said that the Athenians had once killed a Cretan man named Androgeos and had afterwards repented of their own act of wrong-doing. Every year thereafter, to deal with the problem of the city’s guilt and implication in the murder, they drove two undesirable members of the community out of the city in rituals resembling stonings. Such a scapegoat was called a pharmakos. It is related to the word pharmakon which means both medicine and poison and from which we get “pharmacy” and “pharmaceutical.” The ambiguity of the word pharmakon reveals two things, the first being the paradoxical nature of punishment as viewed from the Athenian perspective. Punishment forces a community into facing the idea that acts of violence are expected to cure a community that otherwise disavows acts of violence.
The second feature of punishment revealed by the ritual requires that we know a bit more about it. The festival of Thargelia marked the end of the year, and the day after saw a festival marking the beginning of the new. The Athenians moved through the year knowing that they would conclude the year with a mock stoning, in which they would mimic a communal act of passion and admit to the communal desire to inflict harm. This they would do in order to cure themselves. The festival dramatized the certainty that the community’s rules against violence would eventually break-down; it dramatized that everyone was mutually implicated in the break-down; and that everybody was mutually implicated in a system for restoring order which inevitably treated certain citizens as means to the ends of other citizens. The festival was an admission that the origin of punishment in anger implicates all citizens in a set of disordered relationships, which must be restored but which can be restored only by a process that imposes itself on different citizens in different ways and to different degrees. We can and should deplore the violent means that the Athenians used to make such an admission, but surely the admission itself is an important one: dealing with wrong-doing and punishment requires that we think about the community’s desires and the problem of anger within the community and about how best to respond to those desires and that anger.