Dēmos · Classical Athenian Democracy · a Stoa Publication
Danielle S. Allen, edition of March 23, 2003
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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. But exactly how did the Athenians convert the anger of their citizen-prosecutors into public decisions about punishment?
Plot on a Map
First, it is important to grasp the basic institutional structure of the city. Athenian institutions were not neatly divided into legislative, executive, or judicial bodies as are the institutions of modern democracies. They were distinguished rather according to how citizens took part in them. Citizen men gathered en masse in the Assembly and on popular juries that never had less than 200 members and might have as many as 6000. Or they participated as individuals holding one of the 700 or so magistracies in the city. The high drama of Athenian punishment occurred when private citizens prosecuted one another and found themselves arguing their cases (and their views of law, justice, and democracy) before juries of their peers (how often does any of us ever speak before 500 of our fellow citizens, let alone 1000 or 6000?). But magistrates probably carried out the humdrum work of punishment in Athens.
Let me, then, go over their administrative duties before I return to the courtroom trials. Included among the 700 magistrates were eleven men in charge of the prison who were called, simply, “the Eleven”; officials like the treasurers of Athena who supervised the city’s public funds; the agoranomoi who were responsible for maintaining order in the marketplace; and also the 500 members of the Boule or Council, which was the central executive body in the city and the agenda setting body for the Assembly. The members of the Council assigned among themselves jobs such as those of the thirty “cataloguers of the people” who disciplined public slaves and supervised various religious matters and also themselves supervised a group of enslaved Scythian archers who served as a minimalist police force. These magistrates (with the help of their subordinates, slave and free) could fine, arbitrate, and prosecute or preside at a trial. The Council could act as a court and impose fines up to 500 drachmae, but most officials were limited to 10 or 50 drachmae fines. Probably the same limits applied in arbitrations.
These administrative powers were, in fact, quite important. Most male citizens would have served as magistrates at some point because most magistracies were filled by random lottery, carried a one-year term, and could not be held more than once. Moreover, the cost of an adult male’s food for a year was, on estimate, 36 drachmae, and the daily wage for an unskilled laborer at the end of the fourth century was 1.5 dr. so the power to fine to the tune of 10 and 50 drachmas was consequential. In contrast, even a relatively minor court case could carry a penalty of up to 1000 drachmae. Most social disruptions—petty and even not so petty crime—must have been handled not in the courts but by the ordinary citizen magistrates, and the courtrooms must have been the province of the city’s elites, those who could afford the hefty fines.
Here it is worth noting that women, just like the non-elite male citizens, could participate in the penal system both in trivial dealings with magistrates and as witnesses at arbitrations and as active participants in private arbitrations. They were not, however, allowed in jury trials except as defendants or as material proof, and if a woman were to wind up as a defendant in a court case, a male citizen would have to speak on her behalf. The cases that actually came to trial would have been the flamboyant conflicts among high-powered men, and so the most charged as far as their potential to affect their city was concerned. They would have been the disputes in which it was most important that the citizenry, acting as a collective body of men, confirm its authority over the establishment of norms that would govern and shape life in the city. Let us turn, then, to those judicial dramas.
Plot on a Map
How did a trial work? Here are the basic parameters: Any citizen could initiate a trial (there were no public prosecutors in Athens) simply by registering it with the magistrate under whose jurisdiction it fell; the magistrate would preside over a trial to be judged by a jury of 200+ randomly selected men who would listen first to prosecutor and then defendant and then, without any deliberation, vote by secret ballot; majority vote carried the day; a tie went to the defendant. When a citizen brought a case to court, he had a dizzying array of procedures from which to choose, but we need only pay attention to two absolutely pivotal procedural distinctions: first, these was the distinction between public suits—whether brought as a graphe, phasis, endeixis, apagoge, eisangelia, or probole—and private suits or dikai. Second, there was the distinction between two methods of sentencing convicted wrongdoers. Let’s turn first to the difference between private and public suits.
Private suits or dikai were heard before juries that had 200 or 400 citizens; penalties were smaller than in public cases and the bulk of the penalty was paid to the prosecutor (like damages). Nor did prosecutors in private cases risk any penalty for losing their prosecution. In contrast, public cases, and graphai in particular, were heard before juries of at least 500. The penalty was much larger than in private cases. Worse still, prosecutors in many types of public case had to pay a penalty if they failed to secure at least 20% of the jurors’ votes. The stakes of prosecution were thus much higher in a public than in a private case. But the most important distinction between private and public cases hinges on the method of sentencing that predominated in each case.
The Athenians had two methods for sentencing wrongdoers at trial. Either the law under which the defendant was charged prescribed the penalty or, after a conviction, both prosecutor and defendant had to propose a penalty and the jury, again without discussion, had to vote between the two options. The median voter theorem (in rational choice theory) has it that each litigant would aim to capture the imagination of the median voter and so would moderate his own extreme position for the sake of carrying the vote. The prosecutor would need to suggest a penalty that his audience would not find too extreme; the defendant, one that they would not find too lenient. We see this procedure, which was called timesis, in operation in Socrates’ Apology where Socrates makes a joke of it by proposing that he be punished with free dinners for life. If Socrates had been willing to play by the rules and had made a serious proposal, what had started out as a contest between polar opposites, should have become rather an exercise in finding a middle of the road solution. After having had a chance to vent their anger and enmity, the litigants would be forced, by the procedure of timesis, to greater moderation. The anger that had inspired punishment would at last be channeled into a more restrained outcome oriented toward securing public peace and satisfying all parties, prosecutor, defendant, and community.
Significantly, the procedure of timesis bore a close resemblance to the practice of arbitration where each party had to offer a resolution proposal. Both dikai and graphai could be sentenced by either method, but the procedure of timesis was the more regular method of sentencing in dikai. For graphai it was more common to have sentences defined by law. Private cases thus bore a closer resemblance to the practice of arbitration than did public cases. Here vocabulary becomes important. The word dike was used for arbitration as well as for private cases, but its most basic and common meaning was simply, “justice.” The methods employed for resolving disputes in arbitrations and private cases thus exemplified key Athenian ideas about justice: parties would participate in the venting of emotion and then watch it reined in again, as all parties collaborated (if forced to by institutions rather than voluntarily) in achieving social cohesion by finding moderate outcomes. Thus, in private cases Athenian jurors and litigants cultivated their skills at justice understood as procedures for releasing, and then restraining, powerful negative emotions.
If private cases were associated with such general ideas about justice, what symbolic force did public cases have? A graphe was always, from its inception, a case that was heard before a court, and never before an individual magistrate. These public cases were therefore those having to do with social disruptions that, the Athenians believed, the community needed to confront as a community. Moreover, the word “graphe” means “written thing,” and Athens was a society in which writing played a significant role in memorializing. Thus a conviction under this procedure was followed by the erection of official memorials of punishment, inscriptions in bronze or stone set up in public places for all to see. Public cases, then, were those, a raft of evidence suggests, that the Athenians thought needed especially to be written into social memory. Presenting such cases before large juries was a way of ensuring that the community would remember important conclusions reached about social norms.
The Athenians thus developed methods for responding to anger that either moderated it or else converted it into a public memory. But what were the penalties that they used to moderate and memorialize their anger?
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