Marcus Folch
Victoria Hunter (1997) concludes her seminal study of the Athenian prison (desmôtêrion) thus: ‘…I would imagine [the desmôtêrion as] a structure not designed specifically as a prison where inmates were expected to serve long sentences in solitude, subjected to discipline and normalization, but rather one modeled on domestic accommodation, a kind of large lodging-house for inmates whose stay was temporary and usually very brief’ (emphases added). ‘Discipline and normalization’ are, of course, not far from Discipline and Punish, the English title of Foucault’s (1977) classic treatment of the emergence of the modern prison in the 17th and 18th centuries. The allusion cannot have been accidental. Hunter’s principal contention is that the functions of the Athenian prison were radically unlike post-Classical practices of punishment, remediation, and reformation—that, in other words, Foucault is not useful for the study of the ancient prison.
Foucault might have agreed. Citing a well-known line from Ulpian—‘the prison ought to be maintained for the detention not the punishment of persons’ (carcer enim ad continendos homines, non ad puniendos haberi debet, Dig. 48.19.8.9)—Foucault (1997: 118) draws precisely the same line between classical and contemporary forms of incarceration. For the prison to become a mechanism of surveillance and punitive psychological intervention, he insists, incarceration had to ‘change its juridical status,’ its functions extended beyond the custodial purposes with which it is associated in civil law. What Foucault may not have known is that by demarking ancient from modern, custodial from corrective and punitive practices of incarceration, he was effectively restating a highly conventional reading of ancient prisons, an interpretation established nearly a century before the publication of Discipline and Punish. As the result of the astounding success of Theodor Mommsen’s monumental study of Roman criminal law (Römisches Strafrecht, 1899), prison-as-custody had become the orthodox interpretation of ancient incarceration in classical studies already by the turn of the century (see Hillner 2015: 1-6).
Much recent literature on prisons in Greece and Rome has sought to interrogate the historical bases of, complicate, or challenge Mommsen’s model of classical incarceration (see especially Lovato 2004; Rivière 1994; Krause 1996; Allen 1997, 2000; Bertrand-Dagenbach et al. 1999; Torallas Tovar and Pérez Martín 2003; Pavón Torrejón 2003; Hillner 2015; Folch Forthcoming). And, as a result, analogues and antecedents of aspects of incarceration that were until recently thought distinctly modern—for instance, connections between imprisonment and slavery, punitive and rehabilitative uses of confinement, bondage as a mechanism of intra-elite competition and political disenfranchisement—have increasingly been discovered in antiquity; we find parts of Modernity’s prison already in the past.
This essay takes a different approach, one that seeks to reexamine the enduring presence of antiquity’s prison in Foucault’s conceptualization of modern prisons even after profound changes in the juridical status of the prison in the 17th and 18th centuries. Classical incarceration is shown, on the one hand, to serve as a foil against which Foucault in Madness and Civilization (1965) and Discipline and Punish defines the emergence of both the modern prison and, more importantly, a distinctly modern regime of power and knowledge. In this respect, ancient legal accounts of incarceration in such authors as Ulpian function as the carceral analogue to ancient models of sexuality in the History of Sexuality (1985): the fulcrum against which to write a history of the present. But, on the other hand, as a result of the abiding influence of Roman law on Continental civil law, classical incarceration neither disappears nor is subsumed and eradicated by modern uses of the prison. Modernity’s prison emerges as a mediation of the potentiality inherent in the classical prison; we find parts of antiquity’s prison still in the present.