a1 King′s College, Cambridge
Nineteenth–century scholars assumed that the Athenians as a community punished citizens with death, exile, atimia, and fines and used imprisonment only to hold those awaiting trial, those awaiting execution, and those unable to pay fines.1 As they saw it, brief imprisonment in the stocks occasionally supplemented these penalties, but always as additional penalty–never as a penalty on its own. Barkan saw in the use of imprisonment as an additional penalty the likelihood of general penal imprisonment and used evidence from the oratorical corpus to make an argument therefore.2 His argument seems to have been largely ignored–the nineteenth–century interpretation continuing dominant; and the issue, largely unexplored but for a few glancing references in recent scholarship.3 The issue remains, thus, sufficiently vexed to make worthwhile a restatement of the argument for the use of punitive imprisonment. Also, the evidence provides clues worth setting forth as to why and when punitive imprisonment developed. Indeed, these are sufficient to make an argument about the relevance of the development to Athenian political history. For the introduction of penal imprisonment in Athens proves an extremely important historical moment, marking as it does both the completion of a general will institutionalized (in a punishment of consumption of the wrong–doer within, rather than of expulsion from, the community) and a significant point in the establishment of isonomia.
* The following are works cited frequently and are referred to hereafter by the author's name, and the date of publication: Barkan, I. (1935). Capital Punishment in Ancient Athens. New York: i Arno Press; Barkan (1936) ‘Imprisonment as a Penalty in Ancient Athens’, CP 31: 338–141; I Bonner, R. J. and Smith, G. (1930, 1938). The Administration of Justice from Homer to Aristotle, i vols 1 and 2. Chicago: University of Chicago Press; Cohen, D. (1983). Theft in Athenian Law. München: C. H. Beckische Verlag; Harrison, A. R. W. (1968, 1971). The Law of Athens, vols 1 and 2. Oxford: Clarendon Press; Hunter, V. (1994). Policing Athens. Princeton: Princeton University Press; Ober, J. (1989). Mass and Elite. Princeton: Princeton University Press; Todd, S. (1993). The Shape of Athenian Law. Oxford: Oxford University Press; Vanderpool, E. (June, 1976). ‘The Prison of Socrates’, Illustrated London News 21 A: 87–8.