A vision of hell awaited visitors to the pavilion built by the Cnidians at Delphi, as terrifying as any Christian apocalypse, albeit less violent and more intellectually stimulating. One part of Polygnotus’ enormous frieze depicting Odysseus’ visit to the Underworld showed Tantalus still hoping that this time he might actually manage to put his lips around the fruit that weighed down the branch above him. Elsewhere, tricky Sisyphus, while rolling his rock uphill, was thinking up new ways of making sure that this time it wouldn’t roll back down again, so he could turn his tricky mind to other things. Less famous characters were absorbed in their own games of endurance. Ocnus endlessly plaits a rope whose other end is eaten by a donkey. Just above Tantalus, a man and some women are filling a huge container with drips from broken vessels, not noticing that the container itself is full of holes.
Depictions of punishment figure prominently in images of ancient Greece: Prometheus bound to a mountainside in the Caucasus, his liver eagle-meat, for stealing fire, mankind punished with womankind for receiving said stolen goods; Ixion revolving across the sky tied to a winged wheel, recommending to anyone who would listen the importance of respecting one’s host; Erysichthon ravenously hungry, beginning to eat himself; Andromeda tied to a rock, tasty morsel for a sea-monster, because of something her mother said; Niobe petrified, watching her children die one by one of supernatural causes because of something she said herself; Cassandra unbelieved. Probably the most sublime image of punishment is Socrates drinking hemlock in prison and discovering opportunely the undying soul. Probably the most ridiculous is the schoolboys’ favourite piece of vocab, rhaphanidosis, a punishment inflicted on adulterers by cuckolded husbands, a radish up the arse.
What is so striking about the Greek punitive imagination is not the horror, nor, quite, the mere inventiveness, but its riddling character, close to the paradoxes thought up by Zeno, Polygnotus’ contemporary – the arrow, for instance, that must cross an infinite number of possible halves of any distance and cannot therefore ever reach its target. The Greek Underworld seems more like a plausible nightmare than the Christian laboratory of exquisite exemplary pain, and it is this which has recommended it to modernity. The Greek inferno is Freudian in its strangeness, Chaplin on a production line, Kafka on trial. Lacanians, particularly Jean-Claude Milner and Slavoj Žižek, have thought a lot about these adunata, and found them useful teaching aids with which to explore the comedy of desire and (impossible) satisfaction. In contrast to the Inferno, which seems merely an overheated location in which people get punished, Tartarus is bottomless like eternity, as terrifying as topography can ever be, a space where even the least paradoxical arrow will never find its target, the deepest place on earth.
In these nightmares, Sisyphus and Ocnus work hard and achieve nothing, Cassandra discovers that although she is always right her audience is unimpressed and Tantalus is surrounded by rings of bright water, but his throat is parched. Many of these figments seem designed above all to elaborate important differences between gods and men. Like gods the damned have an eternity to look forward to, but unlike gods it is an eternity they will never enjoy. Like Apollo, Cassandra can see into the future, but her forecasts, unlike Apollo’s, will always be futile. Tantalus and Ixion enjoyed the company of the gods but abused it, the former by inappropriate cuisine (his own stewed son), the latter by inappropriately having sex with Hera, his host’s wife. Niobe and Andromeda’s mother made the mistake of comparing themselves with goddesses loud enough for goddesses to hear. Sisyphus threatened to break the bounds of mortality by engineering escape from Hades’ halls or tricking Death when Death, unused to encountering resistance, came at the appointed hour. The rock-rolling was designed to keep him occupied, so he wouldn’t have time to think up further troubling schemes.
The actual punishments doled out by the Athenian justice system, the only system for which we have good evidence, seem rather boring and repetitive by comparison – usually death by asphyxiation, loss of civic rights or, in most cases, a fine or confiscation of property. A closer look, however, reveals a riddling quality similar to that of the myths. Hemlock is one solution to the riddle of death without bloodshed and murder. The radish is not a statutory punishment but one solution to a riddle in the law: the cuckold can do whatever he wants to wound the miscreant, but he cannot use a knife; tarring and depilation was another option. Even atimia, ‘loss of civic rights’, apparently the least interesting penalty, raises interesting questions about the boundary between citizen and non-citizen just as Tartarus explores the boundaries between gods and men. The atimos remained a citizen and enjoyed a citizen’s protection from violence and attack, but only in theory. If he was assaulted, he wasn’t allowed to prosecute. He couldn’t go to the marketplace, was banned from temples, couldn’t attend the Assembly, couldn’t vote. He was a political Tantalus, a citizen living in his own city, but unable to engage. This is the Athenian purgatory: a killing which isn’t one, a wounding which isn’t one, a citizen who isn’t one.
The very notion of what constitutes a penalty and the relationship between particular punishments and particular crimes can be problematic. You might say, for instance, that adultery was a capital offence, inasmuch as an adulterer caught in the act – ‘on top of’ the woman in question, who need not be a wife, but any free female member of the household – could be killed by the master of the house with impunity. Indeed, the Athenians themselves talk in these terms; this particular provision was the main reason Draco’s legislation was considered draconian, ‘written in blood’. But, as pedants have been pointing out for a long time, this is not strictly true. The law in question is not actually concerned with adultery and its penalties, but with war and fatal accidents. It simply lists cases of justifiable killing and exempts them from prosecution. The husband who kills his wife’s lover is no more considered a murderer than a man who kills someone in a sporting contest, with a misdirected javelin throw. To say the penalty for adultery is death is like saying death is the penalty for wandering round an athletics meeting without due care and attention. Anti-pedants say this argument is specious and attempts to impose on Greek law a more modern kind of systematisation and clarity. Nevertheless, it seems very likely that despite a certain preoccupation with Draco’s law in literary sources, the penalty for adultery was rarely so severe. The one case we know of demonstrates why.
Having despatched his wife’s lover, the husband in question – a man called Euphiletus – was prosecuted by the victim’s family for murder. Anticipating such problems, as soon as he discovered the adulterer was in the house, he had rounded up a number of friends to act as witnesses and they had all trooped into the bedroom carrying torches to illuminate the scene. An adulterer who remained ‘on top of’ his mistress for long enough for witnesses to be gathered without benefit of mobile phones, who was so wrapped up in her he didn’t notice the smell of burning torches or the assembly of a large party of men outside the door in a house so quiet you could hear a hinge creak on another floor, was lover indeed, and probably worth the risk. Moreover, the defendant’s straightforward account of the night in question is framed with baroque sentences, pleading with the jury to take the law seriously. This could be a feint of course, a pretence that it is application of the law, rather than proving the facts, which is the real issue, but killing the adulterer would always have been a very risky thing to do and the alternative – locking the door and extorting vast amounts of money from the offender or spending pleasant hours in the marketplace searching for particularly painful-looking objects to insert into his anus – must very often have been preferred. At any rate, by the classical period there was little spontaneity involved in killing the man you found on top of your wife. It was justifiable homicide, but it was not justifiable on the grounds that it was a crime passionel.
For many crimes there was a range of potential procedures with different risks for the prosecutor and different penalties attached. Depending on which procedure was chosen, the penalty for magisterial corruption, for instance, might be death, a fine of ten times the sum in question or merely confiscation of the bribe. In many cases the penalty was variable. Proposals were made by either party and decided by the jury in a second vote. Socrates took the opportunity to propose, as punishment, extraordinary honours for himself; the jurors weren’t impressed. This strong emphasis on processes rather than on the substance of law has been seen as characteristic of the Greek legal system and meant that prosecutors had to think strategically. By opting for a low-risk, low-penalty procedure, they might win points from the juries for mildness, especially if they could show extreme provocation. Going for a high-risk, high-penalty procedure, on the other hand, might be used as a demonstration of status, confidence, seriousness and power. Some important work on the Athenian legal system over the past fifteen years has argued that the primary issue was a reordering of the terms of the relationship between prosecutor and defendant, who in several cases would have been old adversaries returning to court for round three, or round seven, or seventeen.
Because of the range of procedures, the relationship between the image of crime and the image of punishment was not at all straightforward. The exemplary, emblematic penalties of Islamic sharia, where the crime is written on the criminal’s body, have in ancient Greece only the vaguest equivalents in the fact that atimia, for instance, implies some kind of offence against the citizen community – failure to pay taxes or some other debt to the state – or that the water-carriers painted by Polygnotus were said to represent those uninitiated into the Mysteries of Eleusis, in Greek ‘the unfinished’; their failure ritually to complete is metaphorically reflected in the incomplete vessels they use to perform a task which will never be completed. Punishment was fitted imperfectly to the criminal (paying a debt to society), the victim (revenge or compensation) and the crime. One might better view punishment as one of the more freighted elements in a conversation that served to articulate and define differences of seriousness and status. Punitive verdicts were statements sent by a large cross-section of the community – several hundred or even a few thousand citizens (plus one) sat on juries – to itself, putting individuals or entire groups in their place. Sometimes it is better viewed as a sorting or an ordering system rather than a penal system: Draco’s law can be seen as simply classifying, albeit a loaded kind of classifying, as can Solon’s subsequent addenda, which define more specifically the categories of women – ‘those who walk to and fro in the open, those who sit in a “workshop”’ – men could jump on top of without risking their necks.
Some activities, such as prostitution or failure to divorce an unfaithful wife, were supposed to carry an automatic loss of civic rights without need of a trial. A trial would follow if someone was caught exercising those rights when they shouldn’t have been; theoretically, the trial was not a consequential event in itself, but a confirmation or advertisement of an automatic restriction which miscreants had imposed on themselves by their behaviour. In Syracuse, we are told, labelling itself was part of the punitive armoury; and Athens liked to put up lists of miscreants, as if it was an important part of dealing with wickedness simply to know who the wicked were and write their names in stone. Court cases, called agones – ‘contests’, or even ‘sporting matches’ – were not primarily crucibles for discovering the facts of the case (although we shouldn’t exaggerate the Athenians’ lack of interest in truth), but machines for raising questions about identity and one’s place in the community. We know of only one case in which a man actually went to court to hear a decision on what name he could be known by, but many others went to court to find out who they were and almost everyone emerged from the courtroom with a much better sense, for the time being, of where they stood, although not necessarily with any sense of justice having been done.
Since Cesare di Beccaria first made the observation in the second half of the 18th century, modern criminologists have tended to agree that crime prevention depends above all on the certainty of detection, conviction and punishment, rather than on the severity of punishment in itself. For various reasons, however, the Athenians denied themselves the benefit of a police force (the famous Scythian archers were, it seems, mostly employed as bouncers at public meetings) or even a public prosecution system. Athens was not completely without resources for the investigation of crime, but the burden of prosecution and of enforcement of judgments was overwhelmingly on private citizens themselves, which meant that criminals were caught and their crimes punished in a less than systematic fashion. Consequently, the fantasy of punishment had to bear a large part of the burden of deterrence. Radishes and on-the-spot killings may have been rare occurrences, but they were vivid and must have been hard for adulterers to ignore. How on earth can an adulterer keep it up, asks one character in a comedy, when he suddenly remembers Draco’s law? In some cases it looks as if the severity of the punishment relates to the ease with which the crime could be committed rather than to some intrinsic awfulness in the offence, the low risk of getting caught balanced by extreme jeopardy if you were. According to Demosthenes, for instance, death was the penalty for stealing something worth more than ten drachmas from a public place, even if it was only a perfume bottle from a gymnasium, and there were different penalties depending on whether a theft was committed by day or by night.
Speakers very often cited laws quite irrelevant to the case in hand, arguing that since crime x (against a mere slave) deserved a heavy penalty, according to the ‘lawgiver’ (by which they liked to imply Solon, the esteemed founder of the Constitution), then so much more must crime y (a similar crime against a citizen) be punished. The cuckold Euphiletus, in his strenuous efforts to convince the jury to apply the Draconian exemption and allow him to go scot-free, thought it advisable to note that, from the penalties prescribed, it is clear the lawgiver considered adultery a worse crime even than rape, and goes on to explain the reasons behind the lawgiver’s conclusion: rapists took the wife’s body from the husband, but adulterers stole both body and mind.
The combination of severe deterrent penalties and deficient procedures for establishing facts made Athens fertile ground for extortion and blackmail. Extorting large amounts of money from adulterers seems to have been so much more popular than risking Draco’s law, that many husbands, including our defendant, were suspected of conniving at infidelity in order to make a profit, which meant that this terrible deterrent had the unforeseen effect of blurring the boundary between prostitutes and wives. The sykophants, similarly, are just as likely to be found threatening prosecution in the hope of being bought off as actually pressing charges. Indeed the charge of sykophantia may have been incurred by those who dropped charges for the wrong reasons rather than for the crime of litigiousness itself, for the system depended on citizens being eager litigants, discovering infringements and making sure judgments were carried out.
From this perspective, Athens can be and has been represented as a society more like China during the Cultural Revolution than a modern liberal state. It is useful to be reminded that Athens was not ‘modern’ and that you don’t need secret police to produce an oppressive regime, but much of the material which makes Athens look totalitarian – the gossip and constant close scrutiny of neighbours and passers-by, the naming and shaming, the obsession with keeping people, especially non-citizens, in their place – is a symptom not of an overly powerful community but of a community which, in contrast to all modern and many ancient societies, had left itself deliberately blind and weak, trying to squeeze knowledge from whatever scraps of information it could gather to compensate for extraordinary official ignorance, watching what happened in public so carefully because the private house was, save in exceptional circumstances, quite out-of-bounds, shouting loudly about the importance of fixing boundaries, because boundaries were, in such a society, easily breached.
And if you were sentenced to death for a trivial offence on the basis of rumour or false impressions, there would often be opportunities to escape. Even murderers were granted the option of removing themselves from Athens during the trial, after they had given their speech. And although it was severe, Athenian punishment was not violently brutal, perhaps because of the ‘cult of the body’ and the need to avoid anything which looked like blood-sacrifice. In particular, Athenians would have been very shocked at the floggings meted out by later European states on their own people. Apart from anything else, flogging blurred the boundaries between free man and slave. In this respect ancient Greece, which seems to have eschewed both bloody spectacle and (very largely) incarceration, provides an interesting alternative to Foucault’s two punitive regimes.
It would be a mistake to infer, however, that the world’s first democracy was soft. It was not averse to judicial killing and in certain cases, e.g. thieves caught ‘red-handed’, which might be stretched to include thieves caught in possession of stolen goods, was not averse to killing without trial. Its preferred method of execution was by ‘the board’, apotumpanismos, possibly a form of crucifixion, leading to a bloodless death by exposure, or, more probably, strangulation, since the condemned were attached to said board with a collar which might be fastened tightly for execution, or more loosely – the stocks. What then of hemlock? This, as Danielle Allen demonstrates very cogently in The World of Prometheus, is a major problem. If we confine ourselves to contemporary Athenian sources, the case of Socrates stands out as unique. Hemlock is found not in discussions of punishment but of suicide, the Greek equivalent of the Roman opening his veins. And it is indeed in the context of philosophical suicide that Socrates’ death most often comes up. Though he chose not to take the option of exile or escape, he was not prepared to face the indignity of death on the board. Perhaps it is incorrect to say that death by hemlock was a punishment in Athenian law; perhaps it was another evasion of the official penalty – one which the democracy sanctioned or at which it connived.
In her analysis of the Athenian punitive regime, Allen emphasises, above all, politics, structural symbolism and righteous indignation, drawing her material from those parts of forensic speeches, tragedy and political philosophy where the subject is punishment and desert. In particular, the emphasis on anger, proudly expressed or even boasted of, is a useful corrective to the view prompted by the Oresteia which tends towards the conclusion that the Athenian democracy had tamed the Furies and moved on from a period of primitive spiralling hot-blooded revenge into an era of cool and calm reflection.
Her explicit allegiance is above all to Foucault, and she emphasises the spectacular elements of punishment, although Athenian punishments were spectacular, if at all, in a way quite different from the punishments of his Ancien Régime and Foucault’s model here seems unhelpful. Foucault did, at one time, plan a monograph on the ancient justice system, but, interestingly, it was to be focused on the practice of torturing testimony from slaves, a possibility which was often raised in Athenian trials, but, interestingly, on each occasion we know of, not actually carried out. On the other hand, Foucault’s main subject in Discipline and Punish is the production of disciplined bodies under an authoritative gaze. In Athens, surveiller et punir are not such easy companions; there was an informal judicial gaze oriented towards information-gathering, orators inferring character and allegiances from the way someone walked or dressed, and doubtless this affected the way citizens carried themselves in public. But bodily discipline, it seems, was produced above all in synchronised movement in time to music, in the hoplite ranks, on the rowing benches, in the endless choruses performed by citizens, in war-dances and occasionally, though the evidence is very meagre, in work. The most promising area for comparison with Foucault’s disciplined moderns is in writing practices, which on pots and inscriptions attain a very strict and spectacular regimentation. Allen neglects such practices, on the grounds perhaps that the exercises of discipline in writing can only be inferred from the results, and Foucault, in fact, presides over her analysis in only the most general way, in her emphasis on links between power and knowledge and in references to ‘problematisation’. Her work, in fact, fits comfortably into more mainstream histories of emotion and ideology. Structural symbolism is also a feature, especially in the equation of punishment and purification, leading to what is, at times, a rather functionalist picture of Athens as a lean, mean, self-cleaning machine.
Undoubtedly it is important to see punishments as part of a symbolic system, but too much emphasis on symbolism can lead to misunderstanding – a digression on the symbolism of the figs which form part of the word sykophant (literally ‘fig-denouncer’, perhaps meaning ‘pettifogger’) as testicles full of anger, as wasps and therefore also jurors, is particularly distracting. The same is true for her analysis of atimia as a kind of purification. In symbolic terms atimia can be said to be equivalent to oblivion, keeping the miscreant out of public places. On the other hand, in order for the punishment to be effective, the atimos had to be policed by the rest of the community, i.e. remembered and surveyed. It is certainly worth pointing out that atimia, which might cynically be glossed as exemption from voting, jury-duty and church on Sundays, really was a punishment and not a boon, but, on the other hand, it was surely rather mild in contrast to ruination or death by the board. Public death is nothing to be sniffed at in a city as political as Athens, but it is preferable, nevertheless, to the private kind, not least because it can be reversed.
When in a notorious case, much discussed in recent scholarship, Aeschines charged Timarchus with having prostituted himself in his youth, a crime for which the penalty was atimia, we can understand the case and its conclusion only if we note that Aeschines was being nice, although, to be sure, this is not the usual view of his action. Timarchus had tried to impeach Aeschines for the crime of parapresbeia, ‘ambassadorial misconduct’ or corruption, during negotiations to conclude a treaty with Philip of Macedon, a high-stakes procedure, indicating a matter of national emergency for which the penalty was ruination or, most often, death. By forestalling this attack and attempting merely to disarm his prosecutor (or in fact to recategorise him as a half-citizen), using an unusual procedure for which the consequence was comparatively mild, Aeschines was not only showing himself emollient, but signifying that the geopolitical situation was not nearly so serious, that it was a time not for hysterical denunciations and death penalties, but for light-hearted innuendo and jokes. The social death he asked the jurors, successfully, to impose on Timarchus was by no means a negligible punishment, but it was much nicer than the real thing. It was after all not final, and in Timarchus’ case, at any rate, there is quite good evidence that it was reversed.
Overall, however, The World of Prometheus is a very impressive debut, rich enough in arguments, approaches, theories and facts that one can disagree with a lot of it and still find much which is useful and convincing. In particular, the general emphasis on the conversation about punishment seems to me spot-on. This was a conversation generated by the difficulty of finding closure in the process of what anthropologists call ‘negative reciprocity’, by the city’s denial to itself of a remote punitive establishment and more material techniques of control, as well as by the flexibility inherent in the system. In an Athenian trial a great deal – punishment, intent of lawgiver, even substance of law – was very often up for grabs. But whatever produced it, the conversation itself seems to have ended up shouldering much of the burden of producing order in Athenian society, to a remarkable and peculiar extent. Hours and hours of talk about order tends, above and beyond any consensus reached, to have an ordering effect. The lack of definition, rigidity and transparency in punishment served the useful function of forcing the citizens to go over questions of desert again and again, to perform an endless maintenance of distinctions, values and meaning, a provocation to try endlessly to discover clarity, to make clear.
This meant that even in the most trivial cases, large questions about the purpose of the justice system were raised. We talk nowadays about the socially excluded, as if inclusion was an absolute not a relative term. The excluded in Athens comprised the majority of the population – women, slaves and foreigners – but, on the other hand, the Athenians went to enormous and extraordinary lengths to make sure that male citizens were not only included but massively and intensely involved. Many systems of justice can be usefully compared to a discourse which articulates justice, communicates values and defines degrees of right and wrong, and which can be judged according to the extent to which they perform those discursive functions as clearly, consistently and transparently as possible. But it was precisely because the Athenian system lacked clarity, consistency and transparency that it produced so much talk about justice, keeping the conversation in play, making justice continually present to the citizens, refreshed, involving and alive. And it was in this vivid conversational agon, in this noisy ‘game’ of justice, not in some hidden discourse of unspoken assumptions underneath, that order was to be found.
Not far from the Cnidian pavilion at Delphi the famous motto ‘nothing too much’ was inscribed, which might stand as a useful gist of Greek morality. The Greeks had nothing very similar to the Christian sense of sin, it is true, but Odysseus’ visit to the Land of the Shades in the Polygnotus frieze reflects the same moral universe as the one inhabited by the living. The well-known concern of living Greeks with self-control was not some kind of rational budgeting, or tailoring morality, a case of finding a limit and keeping within it or cutting one’s coat according to one’s cloth, but a desperate avoidance of a life without boundaries or ends or points of reference, which meant not only knowing one’s place vis-à-vis the gods and vis-à-vis one’s fellow citizens and one’s fellow city-dwellers, but knowing one’s place vis-à-vis the world’s pleasures and one’s own desires. Self-control was nothing like calorie-counting – more like walking a tightrope over an abyss, or sailing the high seas on the back of a log, or clinging to the sides of a black, precipitous hole. For once boundaries were broken it was by no means an easy task to restore them. It was not the limit that mattered but avoidance of limitlessness, of aplestia (‘bottomlessness’), tarache (‘disturbance and confusion’), akosmia (‘disorder’), meaninglessness, Chaos. And it is not difficult to see how Tartarus and other myths provided an eschatological reminder of the horrors of endlessness.
In Athens’s law-courts, speaker after speaker found a plausible motive in endless desire; this is why he must have accepted the bribe, why he must have been a prostitute, why he must have stolen the property, why he brings false accusations, why he lays claim to this property which isn’t his. It was the jurors’ job to try to contain these outbreaks of limitlessness, and they did this not with a closed, limiting code of rigorous transparency and consistency but by instigating a never-ending conversation about limits, watching the rock of right and wrong being rolled uphill, only to discover when the next trial began that it had to be rolled back up once more. The flight of the arrow of justice seems ultimately to have been more important than that the arrow hit its target. And the Athenians so arranged things as to keep the arrow endlessly, entrancingly and usefully flying through the air.