Housekeeping.

For Thursday, finish Allen to p. 237
Over weekend, read Wasps and On the Murder of Eratosthenes.
Lecture I on Allen

1. unlike Athenians, modern citizens don’t have to think much about punishment, especially punishment that touches the body [crim prosecutions are the perogative of the state
2. unlike Athenians modern cits can only use jury nullification to criticize punishment/law; and they’re delibertly not told about their authority via jury nullification
 

American model:
Citizens are not legislators [rep form of government]
As jurors citizens are told to defer to legislators
Citizens don’t know/think much about punishment
e.g: hog tie
e.g.: Maxi prisons; high security -> 23 hours in solitary; one hour in exercise cell block, alone
e.g.: capital punishment

Athenian model:
Legislators and jurors same class; same source of authority; as jurors cits can by verdicts change laws they made as legislators
 

4. Allen’s analytical description of punishment

a. begins with social disruption
b. continues with contest/struggle
c. ends in restoration of social peache
d. punishment = an act of power deploying institutions, political and social values

i. institutions of punishment combine with normative discourse which shows that punishment is a central component for establishing and maintaining social/pol orders
ii. normative discourse -> punishment is related to a system of values [which we can study because a) Athenians were self aware/self-reflective; and b) in order to operate in their penal world they had to understand the system of values and had to think about how they would deploy it whether they were prosecutors, defendants or jurors: -> lots of ev in texts where values articulated

a. standard analysis says that punishment and revenge are different; punishment via impartial judicial actor; revenge personal
b. but in fact: distinction just doesn’t hold up
i. Oresteia is not about invention of judiciary [textual references to judging predate Areopagus in play
ii. Anger does not disappear from act of punishment: instead Areopagus is citizens (collective not individual) acting in anger for the city [although they break individual’s anger: -> they ad uncertainty and indetermincy to response to wrong doing: revenge model: victim is angry take reveng; Areopagus punishment model: victim must convince community to be angry and punish.
c. Thus, in Oresteia distinction bt revenge and pment is one of legitimacy: revenge is illegitimate; pment is legitimate and authoritative response to wrong doing

d. What is the source of the Areopagus’ authority?

i. divine mandate
ii. collective jment
iii. male control [furies female]
iv. use of vote
v. anger

e. Threfore, in Athens at least, punishment is about authority.  It must be studied as a practice of constructing authority.

6. How does punishment construct authority?

a. punishment is spectacle: everyone is asked to look at Prometheus chained to the rock; characters and audience must decide if the punishment is just.  If they think so, then it is authoritive and final.  If not, it is simply torture.
b. To make that decision, spectators must decide the wrongdoer’s desert

i. -> punishers and wrongdoers compete/negotiate social political values: does wrongdoer deserve pment?
ii. -> jurors and observers decide which articulation of values is correct; if they decide w/ wrongdoer than punisher may still have ability to punish but it will lack authority [legitimate political authority]

c. one item PB indicates is that political regimes had different penal techniques [hierarchical] with different political impact.  3 levels/types of punishment

i. Punisher allows wrongdoer to acquiesce publicy in assessment of desert

(1) e.g.: plea hearings: def must say he’s guilty and describe conduct which justifies sentence: => def is accepting assessment of his desert and legtimacy of his punishment [nb tax evaders refuse to do this]

ii. Punisher lables wrongdoer with status label and prevents wrongdoer ffrom contesting label by removing from public sphere

(2) e.g.: penal colonies:

iii. Punisher gets rid of what is irremediable threat to his/its penal authority

(3) e.g.: death penalty;

(i) Q ? US death penalty: is wrondoer resisting penal authority? [typically only to extent he argues dp is excessive; i.e., that he deserves to be punished and that the state has the authority to punish are not at issue [he’d take life in prison];
(ii) Allen seems to suggest a category of political crime/execution here, her account doesn’t handel dp for crimes

d. any punishment is an unfulding drama to estabily a final moment as authoritiative. Actors in drama move strategically to assert and contest definitions of desert.  Drama has 3 parts: initiation, process, execution

a. In Athens, anger and personal interest provide only truly legit basis to attmept to punish.

i. punishment inspired by anger is a way to recalibrate states of honor after wrongdoing
ii. punishment has to be carried out in a way that benefits city

(1) punishers and wrongdoers have to speak/act in terms that conform to norms of public agency [will city feel comfortably exacting punishment on plaintiff’s behalf

b. plaintiff required to argue private cases in public eye in language of "desert"
c. since the demos [via jury] generated norms of public agency [via verdicts] the process of punishing in Athens stabilized Athenian politicians and legitimated the authority of the demos.

8. Democratic institutions and punishment:
 

a. Because penal power was distributed throughout the male citizen body, all cits needed to know the city’s shared langaguage for discussing punishment and arguing about "desert"

i. shared/functional knowledge of how to use penal instititions
ii. e.g., what magistrates, arbitrators could and couldn’t due

b. most social disputes resolved b4 trial, which suggests that

i. trials were reserved for social disputes too great to be resolved by individual magistrates [remember authority of Areopagus comes in part from the fact that it is a collective decision]
ii. most trials for elite/rich because stakes were so high.

c. three procedures for resolving allegations of wrongdoing:

i. fine, arbitration, trial
ii. more than one could be deployed in the same dispute
iii. to effectively deploy a prosecutor had to know what most Athenians at a given time would have thought constituted a genuine disruption of the social fabric

d. three trial type procedures

i. [apagoge, graphe, dike]
ii. dike different than graphe in that

(1) prosecutor in dike had to be personal victim of wrongdoing

iii. dike like graphe in that

(1) both were procedures decided by collective body [nb source of Areopagus authority]

a. behavior norms in city’s system of anger undergird city’s understanding of role of anger in punishment

i. honor, reciprocity, social memory
ii. ideal plaintiff: adult male cit who was personally involved in case and acting as angry defender of personal and family honor in a timely fashion
iii. ideal argument: represented prosecutor’s anger, correlated it to jury’s anger on behalf of the city; inspired jury to make their anger against wrongdoer/defendant visible for city to see

b. Athenian understanding of anger [orge]

i. term orge hade iretic and erotic function
ii. always ambivalent: pain and pleasure
iii. central to public political identity

(1) male anger good for city:

(i) citizen/jurors articulated public norms and reinforced authority of demos by lending their anger to plaintiff [or refusing to]
(ii) woman’s anger undermined family and city

iv. reason and passion not inherently opposite: you could have reasoned anger; but passion was subject to political control and social norms; the good city had controlled or regulated anger

(1) real opposition re anger for Greeks was inside of body and out of it which raises q of how what is in body got there
(2) anger could invade/assault body [as victim of wrongdoer] or rise up within body

a. anger defined in part be relationship to competition

i. status role via level of time one enjoyed
ii. all citizens equal before law and had identical time in this sense; but competition for time which occurred in legal form allowed for distinctions w/in citizenry despite equality before law.
iii. Losing a trial meant losing an agon and therefore time -> trials were opportunities for demos to assess and reasses civic distribution of time.

b. punishment was part of zero sum game of honor

i. prosector regained honor by stripping it from wrongdoier
ii. language of courts [punish = to take justice; be punished = to give justice] shows that punsihment is a movement from anger to justice; personal to political via negotiation of honor w/in community. Definitions of anger and justice constructed through terms of honor

a. two types of positive reciprocity

i. balanced: simultaneous xchange of equivalent value [xmas gifts at office]
ii. generalized: continuous relationshipo of exchange; no requirement of equivalency in any one exchange [cf guest host relationshipo]

b. negative reciprocity was always generalized

i. lang of neg reciprocity was prosecutor’s assertion of power; they only ask for death penalty.
ii. Process of punishing transformed a prosecutor’s unlimited private anger into a limited public anger via jury

(1) prosecutor, defendant and Jury had to negotiate punishment
(2) Jury had interest in fostering unlimited generalized positive reciprocity and to contain negative reciprocity and prevent it from becoming unlimited [i.e., a feud]

12. Anger and Social Memory

a. even though Athens had writing it was an oral/visual culture
b. trials were spectacle: commual experience of hearing/seeing  in a public place that linked competitors to their audience
c. social memory: shared set of community narratives to which individuals contribute and which individuals seek to shape
d. => legal system which relied on social memory [because oral culture] to know its own values valorized eye witnesses [w/ exception for pref for written laws]

i. seeling and knowning are related actions
ii. social memory is constructed by a series of moments of witnessing
iii. practically social memory is limited to 3 generations [poets who remember earlier past are inspired by muses]
iv. truth about facts of past exist in the living social memory of people who constitution the political body

e. social memory created via spectacle

i. created in present for the sake of the future;
ii. is judgment of present generation of what future generations will need to know
iii. social memory of positive reciprocity -> favors remembered: good for community if everyone knew what they owed and were owed
iv. social memory of negative reciprocity -> permitted litigants to establish that a fact in the past existed and that it was wrong

f. litigants deploy and shape social memory at trial

i. offered own interp of past and inserted their case into social memory
ii. jury’s verdict gave a conclusion to the cycle of reciprocity in anger and created a new story that defined justice for future generations to use.
iii. Made anger real: trial gave shape to the anger that had inspired the competition
iv. Engaged citizens in decision about reciprocity
v. Invoked social memory and norms encoded in them
vi. Shaped social memory

i. different terms used re punishment -> diff aspects of relationship of pment and desert

(1) time ? competition honor anger
(2) didonai diken ? importance of social relations and their relations to pment
(3) zemia "loss suffered" ? linked punitive exchange to economic exchange of punishment
(4) kolazein ? linked wrongdoer to community

ii. timoria = assessment of honor ? could be discussed as a thing in and of itself or in terms of other language of punishement [to take justice to put wrongdoer in place suggest honor negotiation re punishment]
iii. Plato and Aristotle use vocab quite differently

(1) Plato prefers kolazein: chastisement and has an educational view of pment [Plato hates time assessment re punishment]
(2) Aristotle always uses both -> pment should pay attention both to the victim’s honor and the wrongdoer’s soul.
(3) Philosopher’s use of language reveals that philosophical/linguistic choies were political; language itself could be used to revise concepts of "desert" based on anger and honor"

14. Punishment and the medical metaphor

i. anger is disease that victim, prosecutor and society suffer.  It invades/attacks those who suffer it and unappeased will undermine community
ii. angry people show their anger: it is visible (e.g. in eyes, they glare) like a symptom
iii. viewing can create anger: remember knowledge is a visible experience
iv. spectacle of trial can motivate the anger of the Jury: anger invades those who see wrongdoing and creates w/in them desire for punishment
v. wrongdoer is conceived of as diseased and infectious; // pollution
vi. In tragedy anger is cured by

(1) exile (stops sight of wrongoder) and
(2)  friendship (restrains/prevents anger by recalling mutual obligation and via persuasion)
(3) punishment: the violence of punishment reduces anger of victime/prosecutor/jury whose anger/desire for punishment is sated by spectacle of punishment

vii. punishment is political: hnonor, duty, desire for poltical power are legit motives to seek to punish if linked to anger: => anger is social phenomonen with social consequences
viii. language of cure: pharmicon [remedy and poison]

(1) destruction and healing are two sides of same concept
(2) trying to remedy anger can be dangerous

ix. punishment often spoken of as "necessary" i.e. inevitable and uncontrollable: process intitated by anger attacking victim’s body: subverts his control of situation/passion

(1) prosecutors use punishment not only to "cure" city but to establish their own political power; language of necessity compares the punished to slaves and risks the comparison of the punisher to a despot
(2) the only way you have to show you have power is to punish
(3) the viewer of the spectacle of pment can dedice that punisher has misused his power; usually comes up in case of excess

(a) punisher is impious, he makes knew laws, he treats law as his private posession
(b) but law must belong o community, and be creation of community
(c) stability of polis depends on willingness of individulas to accept the communities’ injunction to adhere to laws that arise within it.