When writing became widespread, laws were recorded to ensure that justice and punishment were no longer arbitrary. Laws weren’t scribbled onto papyrus rolls and hidden; instead, they were engraved into wood or stone and put up for public display. As Douglas MacDowell, one of the foremost authorities on ancient Greek law, put it: “A Classical Greek could think of a law as a physical object” (The Law in Classical Athens (1978), p. 42).
The earliest known Athenian lawgiver was Dracon, who wrote down a set of laws in 621/620 BC. The punishment for breaking almost any law was supposedly death (according to Plutarch), and it’s perhaps no surprise that we derive our word “draconian” from this man. It’s difficult to gauge whether or not Plutarch’s summary is accurate; in fact, considering how untrustworthy Plutarch is at the best of times, we should probably reject whatever he has to say on this topic. After all, the idea of the Athenians accepting laws that would sentence people to death for relatively minor offences like stealing apples or being convicted of “idleness” seems odd to say the least.
Since we’re relatively well informed about the laws of Classical Athens, there are a few books available for those who want to learn more. Aside from the book by MacDowell cited earlier, you can also check out his Athenian Homicide Law in the Age of Orators (1963), A.R.W. Harrison’s two-volume study The Law of Athens (1968 & 1971), and S.C. Todd’s more modern The Shape of Athenian Law (1993). MacDowell also wrote a very handy little book called Spartan Law (1986) that deals with the legal customs of the Spartans and that offers a nice contrast with the material on Classical Athens.
The death penalty was the most severe form of punishment in Athens and usually reserved only for the most severe offenders of the law. The death sentence was generally reserved for those who had been found guilty of intentional homicide or who had commited another grave sin. (Sometimes, this included blasphemy. Socrates’ accusation of corrupting the youth was exceptional.) By contrast, the punishment for unintentional homicide was generally exile, and the person found guilty of that was allowed to retain his property.
In an Athenian homicide case, each side was allowed to make two speeches, with the prosecutor and the defendant speaking in turn. At the end of his first speech, the defendant was allowed to go into exile, which was a convenient way for someone who feared conviction of saving his own life. Once the speeches were over, the jury did not leave to deliberate, but immediately cast their votes. The presiding magistrate (called a basileus, “king”) pronounced verdict based on the vote. Someone found guilty of intentional homicide would be sentenced to death and his property would be confiscated.
Of course, these rules applied to Athenian citizens who had been found guilty of murdering a fellow Athenian citizen. We’re not as well informed about murder cases involving the slaying of a foreigner, a resident alien, or a slave, but the general assumption is that punishments were less severe, ranging from possible exile to almost certainly the payment of a fine. In the case of a slave, the fine would have had to be paid to the slave’s owner; in the case of a foreigner, to that person’s relatives.
The death penalty in Classical Athens
Punishment was usually meted out immediately after the trial. We know of three different forms of execution. The first involved throwing the sentenced person down a deep chasm or pit (barathron or, in the fourth century BC, orygma). Later, it seems that people were first killed and their remains tossed into the pit. MacDowell suggests that throwing living people down a chasm for them to die – on impact or later – was no longer practised in the fourth century BC (op. cit., p. 255).
The second method was through the use of a tympanon. This has been the source of some confusion. A late lexicographer, as mentioned by MacDowell in his Athenian Homicide Law (pp. 111-112), explained that the tympanon was shaped like a club, and that it was later replaced by a sword, suggesting that criminals were beaten to death. MacDowell and other writers, including Todd, suggest that it was a board stuck into the ground to which the victim was fastened and left to die of exposure and thirst, in a manner roughly similar to crucifixion.
The third method was death by drinking hemlock. This was how the philosopher Socrates ultimately met his end. Supposedly, the Thirty Tyrants in 404/403 BC had sentenced a few other men to drink hemlock. But these instances are rare, and limited to the years around 400 BC. Death by hemlock appears not to have been used before 404/403 or after 399 BC, except in the case of suicides. As such, it seems unlikely that it was ever very common.
MacDowell writes that it “is remarkable that neither hanging nor decapitation seems to have been used.” I’m not sure that this is so remarkable. Outright murdering a person caused religious pollution (miasma), from which a person had to be ritually cleansed.
Fear of religious pollution is the reason why, in so many stories of Greek mythology, unwanted infants are left to die from exposure rather than simply killed – the act of killing a person would have had serious consequences on the executioner and whoever aided him (possibly including the jury and the presiding magistrates). Even the Spartans didn’t cast malformed or otherwise imperfect children from a rock (as some would have us believe), but merely left them out to die of exposure.
The ancient Greeks generally preferred to sentence people to die in indirect ways: by throwing them into a precipice, tying them still alive to a board to die of exposure, or indeed by having the convicted criminal drink a cup of hemlock. In this way, the people involved in carrying out the sentence did not run the risk of being regarded as murderers themselves.