Cantor - Privacy In Greece

COWMBIA LAW LIBRARY

J UL 2 ) 1972

PRIVACY IN GREECE by NORMAN F, CANTOR, COLUMBIA UNIVERSITY \ ' \

A REPORT SUBMITTED TO THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK, Special Committee on Science and Law

Confidential -- For Private Circulation Only December 19, 1963

PRIVACY I N GREECE

THEORETICAL PREFACE Rights to privacy are part of the broad domain

i

.

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of private rights and as such are demands for forebearance

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en

asserted by the holder of these rj.ghts against all of the rest of society.

They are not in themselves justifications

for a particular action but claims that interference with some activity constitutes a capricious -- or unjustified -restriction.

They are both general and defensive in nature.

Care should be taken} however, not to assume that all defensive rights are also rights to privacy.

The individual1s

right, under Anglo-American law, to a trial conducted by 'due process of law' is a demand that he be treated without caprice, and a reiteration of the general right accorded all individuals, that demands justification for the interference with any behavior. privacy.

But it is not a right to

Therefore it is imperative that the historian

clearly indicates the domain of privacy rights and does not privacy.

Therefore it is imperative that the historian

clearly indicates the domain of privacy rights and does not confuse them with other demands for forebearance which may resemble those that he is interested in. In general, the most fruitful method of revealing the extent of an individualis privacy in the past is to examine the extent of his allowed behavior.

When we ask

to what degree an Athenian citizen could do as he willed, we are inquiring into the extent of his rights to private action or thought or speech, and in noting the general restrictions society placed on these rights, we are determining the actual amount of privacy an individual possessed.

Overt permitted behavior is an extremely

valuable tool for the historian of this topic.

And

correspondingly, when we examine the justifications offered for interference (e.g. 'threat to the state', 'protection of the public', etc.) we can see clearly and from another viewpoint, the amount of freedom an individual enjoyed in his private sphere.

Thus it is important

to note that a freeborn Athenian citizAn could engage in a wide variety of sexual acts without attracting the censure of his fellows or the repression of the state. And equally, when the great Athenian leader Pericles forbade the production of certain comedies during a period of severe crisis we can ascertain the usual limits of freedom allowed to private groups. In the case of Athens during the fifth and early fourth centuries, it is not sufficient to merely indicate the domain of allowed private actions and thoughts without indicating that the Greeks viewed their private lives as part of a public life of the community and state.

We too

often tend to assume that all societies emulated our

2

division of allegiances and divided their loyalties between the public and private spheres,

But while Greek

society often felt an ethical conflict between various demands (Antigone who must choose between allegiance to law and allegiance to family and religious codes) they still maintained that their private performances and activities could be expressive of a communal devotion and commitment.

Thus the

painter~

the artist, the erotic

lover, and the musician did not go about their tasks in an anomic vacuum but felt that in their various pursuits they were signifying their attachment to and love for their home.

The perspicacious student of Greek history

will note that this is a complex and subtle arrangement of the private and public worlds, and that the traditional discussion of privacy is not entirely adequate to describe the Athenian state,

It should also be noted that the

Greeks of this period formulated and practiced a kind of patriotism different than the hysterical mixture with which we are so familiar; and that in many ways the actions of their private lives reflected their highest and calmest devotion to the ideals of their state. Of course we must also not forget that a study such as this is meant to be comparative, and so a good deal of our discussion will center about the concrete facts of Greek privacy as we understand the termj i.e. (the allowed limit of action, speech and thought tolerated

3

in the Greek world) and our aim will be to illuminate our own and other societies by comparing these limits. THE PHYSICAL CONDITIONS OF PRIVACY IN THE GREEK WORLD The rights to privacy are contingent to a certain extent, upon the individual's ability physi c al1y' to .withdraw from his neighbors, his community and his state; for although it is quite possible that a community could grant full and genuine rights to privacy and still lack the resources for solitude, it is not likely that privacy of sexual attitudes, thought, speech and action could develop and flourish in a society which does not provide for periodic physical withdrawal. l In many ways the pre-Socratic assertion that "every man was a little world of his own"2 reflected the common assumption that a man's (a free man, that is) home and the comforts and responsibilities it

symbolized~

represented a privileged source of retreat and isolation. Intrusion into this private sector was an offense subject

Intrusion into this private sector was an offense subject

1.

Of course, in certain cases observation constitutes just that sort of action which a right to privacy is designed to prevent. When X sees Y's secret files he is violating his right of privacy, for example. But this is only a special case.

2.

See Diels, Die

261, 62, 55-.-

Vorsokratiker~

4

Fragments 41, 179, 34,

to the gravest opprobrium and on occasion even death. A famous edict of Solon3 asserts that the individual who surprises his wife in the act of adultery has the right to slay her seducer.

The severity of this judgment

reflects the Athenian belief that a violation of a man's wife was a violation of his home, and as such a wicked violation of his right to physical privacy and isolation. Euphiletus, who was tried for murdering his wife'S seducer Eratosthenes, argues that his victim committed the crime of "breaking into (hiS) house" and as such merited his swift execution. 4 This prevailing attitude was re-enforced by the architecture of Athens and the other city-states.

Cities

were expected to serve both as dwelling places and as a source of protection against the outside world.

Huch of

the planning of the city was undertaken with this second function in mind:

streets were narrow and irregular,

living quarters were jumbled so as to baffle an invader, and the centers of commerce and trade were restricted in

3.

See Aristotle, Constitution of Athens, Section 57, ed. by Fritz and Kapp, 1950.

4.

See liOn the Killing of Era tosthenes the Seducer", written by Lysias, in The Murder of Herodes, ed. by K. Freeman, 1963.

5

number and size.

The free Athenian citizen lived in a

populaus residential area, in close propinquity to his immediate neighbors but removed from the rest of society by a maze of tWisting streets and passageways.

Most

houses were built around an interior courtyard.

Smith

says that: The house was built to the edge of the street . . . From the street one entered a passageway or outer room. Beyond this was a courtyard, off which opened the inner rooms. Mos t of the living "lent on in the courtyard. There might be a second story and, in big houses, several courtyards.5 In the interior of the house J servants, masters, women and domesticated animals moved about with relative ease and abandon.

Usually the women occupied the top

floor and the men the bottom.

While this entire area

represented a privileged sanctuary against outside interference or intrusion, it is certain that the interior of the home offered the Athenian male almost no real opportunity for complete physical withdrawal.

It was an accepted

fact of life that the most intimate phySical acts \'1ere carried on in full view of a household full of Slaves, domestics, artisans, children and relations.

In the

Nediterranian climate, men wore little clothing anyway, and it was a relatively easy step to progress from partial nudity to more or less complete abandon.

5.

Morton Smith, The Ancient Greeks, 1960, p. 18.

6

But observation should not be construed as an invasion of privacy for the simple and sufficient reason that our modern sense of physical modesty was not present in the Athenian world.

And as a result it

is meaningless for us to talk about a whole domain of privacy when we discuss this period J for the concept that displaying the body and exhibiting its functions is indecent was singularly absent in the Ancient World. The home served to divorce a man from the rest of his community and served both as a source of comfort and an area of retreat.

It did not serve to isolate a man

from his slaves J his wife, his children or his household affairs. When a free Athenian male left his home he could journey to several areas within the city.

The

market place or, Agora, was usually the only open area in the town and functioned as a center of commerce and trade, social life and conversation, information and exchange.

Together with sites of worship, it was the

public area in ancient Athens. exchange.

Some distance from the

Together with sites of worship, it was the

public area in ancient Athens.

Some distance from the

market place were located the gymnasiums. analogous to the modern gentleman's "club".

These were Their scope

was considerably wider however, and included erotic, physical, artistic and intellectual activities.

The

educated Athenian spent much of his time within the walls

7

of the gymnasium, developing his mind and body, fulf.illing his sexual and emotional needs through very proper liasons with young men (sent to the gymnasium for just that sort of education and insight which an affair with an older man could afford), reading and writing, and in general cultivating those attitudes and postures which comprised the higher ideals of the Greek culture. he did not possess complete privacy.

But

Although the widest

possible latitude was accorded him by his fellow citizens, he was expected to perform in a certain manner and to uphold definite standards of thought and speech.

He could

not use his gymnasium to effect a withdrawal from the world nor could he demand forebearance on the part of his fellows when they requested his indulgence and participation in their affairs.

But the gymnasium as an institution

was most definitely a privileged enclave.

It was a social

institution aloof from the rest of society; it tolerated no invasions of its privacy and admitted no corruption of its purpose. meet.

ViaS

a physical center where free men could

It accommoda ted various small grOUDS

its purpose. meet.

It

It

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wi thi D A t .hprli,qrl

a physical center where free men could

It accommodated various small groups within Athenian

society and granted them -- rather than any individual -rights to intimacy and privacy.

Since the gymnasiums were

supported by public funds, they grew in importance in the Athenian world, and during the fourth century more and more

8

of the population made use of the facilities for communication, recreation and eroticism offered by this institution. In addition to the gymnasiums the fifth century wealthy Athenian had recourse to a number of clubs which also served as isolated centers of privacy and remoteness. This phenomena grew as the century progressed, and during the fourth century B.C. and even more, during the early part of the third, private clubs became an exceedingly important center of intellectual and social life.

Plato's

academy 1s the model for these clubs, and their physical isolation from the centers of the cities' social life (i.e. the home and the market place) served to illustrate their isolation from interference. We may conclude this survey by noting that the Athenian male could seek privacy and freedom from restraint in his home, his club and his gymnasium.

In each his

right to demand forebearance was in some way limited; his home he shared with many others, his gymnasium made frequent demands upon him as did his club.

But within the

bounds of his "groupsl privacy", he could expect (more or less) a good deal of respect for his physical withdrawal from the public world symbolized by the market place. SEXUAL AND BODILY PRIVACY The growth of individualism was one of the most significant aspects of Hellenic historYj and in Athens it

9

was expressed in the widespread assumption that a man's private life 3 in so far as it did not interfere with his neighbor's rights or bring dishonor to the state, was his own business and not subject to the dictates of state decree or local passion.

Pericles expressed it well when

he asserted that: there is no exclusiveness in our public life and in our private intercourse. We are not suspicious of one another, nor angry with our neighbor if he does what he likes. 6 The free Athenian male had a wide variety of sexual prerogatives.

He might take a wife; he could

become the lover of a young man; he could begin a liason with a courtesan, he could hire a prostitute; he might debauch his slaves.

Few acts, save outright murder,

were severe enough to earn the general disapprobation of the community.

Indeed one of the more notable aspects

of the cynic Crates' teaching was his injunction against sexual immorality at a time when men attached little shame to the sex act, and construed injunctions against adultery loosely. But while men had a Wide variety of opportunities to satisfy their sexual impulses, women suffered from either severe sexual restrictions or an enforced and

6.

Quoted from Thucidytles in Bury, History of Greece, p.

404.

10

unwilling promiscuity.

A freeborn Athenian woman could

expect to pass her life in the bondage to her father or brother, and then her husband. participate in

society~

She was not expected to

nor was she permitted to indulge

in sexual liberties of any sort.

Since property passed

through the hands of the first born son, it was of the highest importance to preserve the lineage of a family intact and free from even the suspicion of corruption. Man's biological ability to copulate without conceiving, and anCient woman's relative inability to thwart conception after copulation resulted in the gross inequality in their sexual rights. While the free women languished in a narrow sexual world not of their

choo~ing, . women

born to . slavery

or lacking position were faced with a life filled with sexual titillation.

But often the sexual proposition

could not be refused; in the case of slave women, they had no choice whatsoever in matters of a sexual nature. Not only could they be mated at will;7 they were subjected to the vagaries of the desire of all who owned them.

7.

Occasionally, when a slave woman wished to purchase her freedom she was ordered to rear one child for her mistress or master. Hence she was forced to mate with whomever her master desired the father to be.

11

That the ancient world was far more lascivious than our own cannot be disputed.

Yet we must be clear as

to what this means in terms of our analysis of privacy. Only in the case of the free Athenian male can we say that he enjoyed a widespread and significant right to sexual privacy exceeding our own.

With women and slaves

the reverse was quite true; although they might in the course of their lifetime engage in a number of sexual acts and partners denied to modern women) they lacked the elementary right of abstention which is the distinguishing mark of a right to sexual privacy.

It should be

noted that at least 40% of the population of ancient Athens were slaves; in Sparta the slaves constituted 60 or

70%

of the population.

PRIVACY OF THOUGHT, SPEECH AND RELIGION The right to consider ones utterances private was unquestioned for much of the fifth and fourth centuries.

Perhaps because of a lack of technological devices

to record the ries.

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Perhaps because of a lack of technological devices

to record the patters of speech, and because of a greater respect for the process of communication which speech symbolized, the Athenian government and populace was very reluctant to move against the right of verbal privacy. Throughout the entire century the comic poets ridiculed and lampooned the institutions of state and the principles

of society with abandon; and it was a significant and major departure from accepted policy when Pericles forbade the performance of certain sarcastic comedies during the height of the war with Sparta.

Bury remarks

that there is no more significant sympton of the political and social health of the Athenian state in the period of its empire, than the perfect freedom which was accorded to the comic stage, to laugh at everything in earth and heaven, and splash with ridicule every institution of the city and every movement of the day, to libel the statesmen and even to jest at the Gods. It (this freedom) can only prevail in a free country, where men's belief in their own strength and culture is still deep and fervent . ~ During the fifth century, many private oligarchic gymnasiums and clubs flourished in Athens and formed privileged enclaves of privacy and isolation for the wealthier segments of society.

In the following 150 years these clubs

expanded to include all sections of the free society and became extremely important centers of private thought and discussion.

The prototype for these clubs in the fourth

century, was the philosophic academy of Plato and the literary academy of Isocrates.

Within the confines of these centers

discussion was generally unlimited and free of restraint. Of course this was not always so, and we are more discussion was generally unlimited and free of restraint. Of course this was not always so, and we are more apt to remember the fate of Socrates than the privacy of speech which coexisted along with it.

8.

Bury,

2£.

Cit. p. 385.

But Socrates was a

special case and one which confused his contemporaries. The charge made against him had some truth, but was very unfair.

He had preached against the old gods by encour-

aging the habits of critical and reflective thought;9 and he had been associated with many men, such as Alclbiades and Critias, who were enemies of the democracy.

Moreover he

had had the bad fortune to teach at a time when Athenian democracy was insecure and weak .

He seemed to be a very

great nuisance to many men, especially those whom he crossexamined; his general air of irreverance must have appeared out of place and in the worst of taste to his accusers. no one wanted to have him killed: alternative to execution.

But

exile was a reasonable

Nor did anyone seriously wish to

violate the general and prevailing respect for privacy of speech.

Had Socrates not been so obstreperous his fate would

not have been so severe.

As it was the men who tried him

wished to subject his rights to privacy of speech to certain temporal and spatial limitations:

they did not wish him to

address the youth of the city and they desired that he forego his criticisms of the gods.

What seemed to us an invasion of

his criticisms of the gods.

What seemed to us an invasion of

privacy was actually a decision on the part of the Athenian officials that Socrates had left the privileged area of

9.

In fact Socrates made frequent offerings to the gods and always maintained his loyalty to them.

private communication and had commenced to address the public at large.

And leaving it he was subject to judgment according

to the canons of good taste and propriety. The fact that Socrates stepped out from the private world and was crushed by the forces of an uneasy time and a stupid officialdom should not blind us to the fact that private organisations and clubs did enjoy a great measure of freedom and respect.

The fourth century witnessed a general

proliferation of these academies; Stoic and Epicurean doctrines, Aristotelian classifications, logic and Platonic realism all were taught, analysed and discussed. lO

Naturally

a member of one of these academies had to be prudent; one could not march through the streets of Athens and denounce the gods with impunity.

One was expected to restrict

controversial discourse to the private sphere.

Nor was it

always entirely safe to commit ones thoughts to paper.

The

written word was sometimes considered a part of the public domain and actionable as such.

But speech, the intimate

discourse between men which Aristotle had proclaimed to be the distinguishing mark of the human species, was granted full rights of orivacv so

lon~

8R

i t WRR

~onrllJ~~prl

in

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the distinguishing mark of the human species, was granted full rights of privacy so long as it was conducted in a private sphere.

10.

See Smith, 2£. Cit. p. 98. 'One purpose of the Academy was . . . to enable Plato to keep his teachings a secret.'

In view of our discussion of privacy of speech, it is more or less irrelevant to discuss privacy of thought, for mutatis mutandis, all that we have said applies here also. Let us note however, that privacy of thought contains two components:

the right to expect forebearance on the part of

all members of society with respect to your thoughts, and the right to expect that none will attempt to influence your thoughts.

In modern times the most notable invasion of this

right has been the various forms of 'brainwashing'.

The

ancient world -- with the exception of Sparta -- was ignorant of this practice.

Athens witnessed boasting and public self-

glorification, and the tone of Periclean Athens is often smug, but it can be flatly asserted that Athenian life did not include positive coercive attempts to change the thought content of the citizens of the city. Religion also was a matter accorded wide privileges of privacy.

The character of Greek religious belief in the

fourth -- and even more in the third -- century was such as to preclude the possibility of a genuine state religion which would exclude other modes of worship or belief.

Religion was

would exclude other modes of worship or belief.

Religion was

a ritual exercise closely associated with a concept of civic dignity, and a source of communal activity.

But it was by

and large not dogmatic nor assertive; it demanded only adherence to procedure and not substantive allegiance, and it was indifferent to the inner spiritual attitude of those who performed its rites.

As H. J. Rose says:

The religion of ancient Greece had no creed, and although certain actions were irreligious, and therefore condemned as displeasing to the supernatural powers, there was nothing like a code or system of morality which must be accepted by everyone . . . Furthermore a man's private beliefs were no concern of any ecclesiastical authority

11

It was form and not content which captured the Greek mind. a natural result the office of the Priest was considerably different than in later Christianity, and the man chosen to exercise the priestly function could neither perform transcendental sacraments nor could he demand allegiance to a standard of conduct.

Nor could he attempt to investigate

the mental state of the worshipper. It was this attitude which contributed greatly to proliferation of different sects in Athens during the period of its empire and expansion.

Traders founded their own

temples and prayed in perfect security.

At times Athenians

found the religions of the Near East more appealing than their own and adopted oriental precepts and religious attitudes.

Whole classes of protective demons such as Amynos,

Hypodectes and Dexion were worshipped. ancestors were revered.

Often one1s own

Religious pluralism and complete

tolerance were an accepted pattern of behavior. Athens clearly enjoyed a great measure of religious privacy.

11.

But we must be sure to understand that this

H. J. Rose, Religion in Greece and Rome, Op. Cit. p. 9.

17

As

privacy was predicated upon the peculiar religious notions that the Greeks held; their absence of belief in transcental

salvation~

their pluralistic deities, and their general

failure to make the substance of religion

meaningful~

lie

at the root of their great religious toleration. CONCLUSION In our discussion of the rights of privacy in Athens during the Periclean age and the early fourth

century~

we have

demonstrated the existence of widespread rights to privacy which~

though violated occasionally (and during the rule of

the thirty

tyrants~

often)~

and limited in degree were on the

whole respected and maintained.

Sexual, for free males and

religious and intellectual privacy for all citizens were upheld.

But we should point out and emphasize here that

there were restricted rights: some of them.

women and slaves did not share

In addition we must again reiterate that during

the age of the Athenian empire, the existence of a wide and active private sphere of interests was not assumed to preclude the possibility of public involvement with the state. In a subtle and sophisticated fashion, the Athenians of the clude the possibility of public involvement with the state. In a subtle and sophisticated fashion, the Athenians of the fifth century asserted their love for their country through their private lives.

They did not share the modern belief

that devotion to one's country and an enthusiastic private life are incompatible.

Indeed the works of the private life

were commonly assumed to be the highest tribute to the glory of the state.

As the fifth century passed, this tendency toward individualism which we have discussed, increased greatly. With the decline of the prestige of the state, private associations, sects, cults, religious worships and philosophic attitudes mushroomed.

As the public sphere became uninter-

esting and unworthy of devotion, the private world grew larger.

Epicureanism and Stoicism, products of fourth

century thought, reflect the growing concern with the regulation and control of the private world which has lost its tenuous link with the public life.

Although we have discussed

the institutions of the fifth and fourth century without making a great distinction (since there is no great distinction between the rights of privacy in this period) between them, we should note now that although the actual rights to private associations, thoughts or speech did not increase after the era of the empire, the actual size of the private world grew larger and larger. The growth of individualism of the third century, while laudible in terms of human rights, is nonetheless a mark of the failure of the delicate balance between the private and the public which had existed in the Periclean mark of the failure of the delicate balance between the private and the public which had existed in the Periclean Age.

The widespread uneasiness of much of the third century

thought, and the grasping nature of much of life itself, should prompt us to ask whether the existence of widespread and full right to privacy without some attendant relationship to a public sphere of interest and purpose, is an unequivocable good.