Ask any modern citizen to name a punishment meted out by their state and odds are the first thing she will say is “imprisonment.” Ask the same citizen then to say why modern states use imprisonment as their preferred penalty, and he’ll say, “We need to keep the bad guys off the street! Prisons are for deterrence.” Or, the odds are just as good that the answer will be, “Prisons are places where criminals can take classes, get religion, hold a job and so be reformed for their re-entry to society.” Or, again, still the odds are the same, this citizen may rather say, “Criminals should pay and life in prison should be as hard as possible.” Modern citizens are notoriously fixated on imprisonment as the central penalty and just as notoriously unable to reach consensus on whether retribution, deterrence, or reform should be the central principle of punishment.

As philosopher John Rawls put it in 1955: “The subject of punishment has always been a troubling moral question. The trouble about it has not been that people disagree as to whether or not punishment is justifiable… only a few have rejected punishment entirely… The difficulty is with the justification of punishment: various arguments for it have been given by moral philosophers but so far none of them has won any sort of general acceptance; no justification is without those who detest it [emphasis added].” (“Two Concepts of Rules” John Rawls, 37).

When in 1968 legal theorist H. L. A. Hart wrote about theoretical efforts to justify punishment, he too displayed unease: “Many are now troubled by the suspicion that the view that there is just one supreme value or objective (e.g. Deterrence, Retribution, Reform) in terms of which all questions about the justification of punishment are to be answered is somehow wrong… no clear account of what the different values or objectives are, or how they fit together in the justification of punishment can be extracted [first emphasis added].” (Punishment and Responsibility: Essays in the Philosophy of Law. Oxford: Clarendon Press, p. 16).

Rawls’ remark from the 50’s and Hart’s from the 60’s still apply: modern penal theory consistently evinces an unease, a certain troubled-ness, about why we punish. The Athenian democrats, in contrast, to the citizens of modern democracies, knew why they punished. And so we will begin where they did, with this question, “Why did the Athenians punish?” as the first of four questions to be explored in this lecture.

Let me outline the four questions. The first two are both “Why” questions. First, we will ask why the Athenians punished in the sense of, “How come?”: “What caused them to punish and when did they think it necessary to punish?” Second, we will ask another “why” question, not “what initiated punishment?” but rather “to what ends did the Athenians punish?” This is “why” in the sense of “What were their objectives in punishing?” Third, we will ask how the Athenians punished. By what processes and procedures did they move from identifying a wrongdoer to assigning him (and upon rare occasion her) a penalty? And fourth, we will ask what penalties they finally imposed on the wrongdoer.

Plot on a Map
Athens.

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.