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

i Rights to privacy are part of the broad domain

.
E
C\J
of private rights and as such are demands for forebearance
r--
-
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 defen-
sive 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 inter-
ference with any behavior. But it is not a right to
privacy. 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 individ-
ual 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 al-
though 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 pe-
riodic 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 Vorsokratiker~ Fragments 41, 179, 34,
261, 62, 55-.-

4
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 inter-
ference or intrusion, it is certain that the interior of
the home offered the Athenian male almost no real opportun-
ity 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. Some distance from the
exchange. Together with sites of worship, it was the
public area in ancient Athens. Some distance from the
market place were located the gymnasiums. These were
analogous to the modern gentleman's "club". 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.ill-
ing 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. But
he did not possess complete privacy. 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 participa-
tion 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. It ViaS a physical center where free men could
meet. It accommoda ted various small grOUDS wi thi D A t .hprli,qrl

its purpose. It ViaS a physical center where free men could

meet. 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 communica-
tion, 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 opportuni-
ties 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. She was not expected to
participate in society~ 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 concep-
tion 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 sub-
jected 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 distinguish-
ing 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 centu-
ries. Perhaps because of a lack of technological devices
to record the Dattp.Y'R nf' ~n",,,,('h _ <:>n.rJ. _hoo.~.1..l."'~ ~o.f' vt'. "::n~r,-,",h--­

ries. 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 privi-
leged 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. But Socrates was a

8. Bury, 2£. Cit. p. 385.

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 cross-
examined; his general air of irreverance must have appeared
out of place and in the worst of taste to his accusers. But
no one wanted to have him killed: exile was a reasonable
alternative to execution. 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 doc-
trines, 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 R

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 adher-
ence to procedure and not substantive allegiance, and it was
indifferent to the inner spiritual attitude of those who per-
formed 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 super-
natural 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. As
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 tran-
scendental 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 pro-
liferation 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 atti-
tudes. Whole classes of protective demons such as Amynos,
Hypodectes and Dexion were worshipped. Often one1s own
ancestors were revered. Religious pluralism and complete
tolerance were an accepted pattern of behavior.
Athens clearly enjoyed a great measure of religious
privacy. But we must be sure to understand that this

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

17
privacy was predicated upon the peculiar religious notions
that the Greeks held; their absence of belief in transcen-
tal 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: women and slaves did not share
some of them. 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 pre-
clude 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 asso-
ciations, 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 regu-
lation 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 be-
tween 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.