DEFINITION AND TRADITION

We do not know what literature was composed in first-millennium Babylonia; we know only what literary works were kept in royal and private libraries of that period. Some works may merely have found a repository there; others were very much in use, on religious occasions, to be recited or to serve as guides for ritual and magic performances. Still others were copied again and again, and the scholarly literature was extensively commented upon.

At the outset it has to be stated that the word ‘literature’ is here used in a broad sense, to include not only belles-lettres but also the standardized works of various experts – in divination, magic, ritual, and linguistic scholarship. That is to say, we will be considering that body of texts that has been termed by Oppenheim the ‘stream of tradition’.

The material to be considered is that kept at the royal library of Ashurbanipal at Nineveh, to which may be added such provincial libraries as Sultantepe, and, at the very end of the era of cuneiform writing altogether, the libraries of scholars in southern Babylonia, mostly from Uruk, dating to the Seleucid period, which to a large measure duplicate the texts from Nineveh and thus can serve to illustrate the literature of the period in question, 747–539B.C.

TIGLATH-PILESER III AND THE ASSYRIAN THREAT

In the first half of the eighth century B.C. the independent kingdoms of Israel and Judah enjoyed a period of prosperity which had not been known since the time of Solomon in the tenth century. A new situation began to develop, however, with the accession of Tiglath-pileser III to the throne of Assyria in 744 B.C. At that time Uzziah (767–740) was still in power in Judah, while Menahem (752–742), the founder of the fifth dynasty of Israelite kings since the death of Solomon, was ruling in Samaria. Very little is said about Menahem in the Old Testament. He seems to have been violent and ruthless (II Ki. 15:16); when there was a threat from the power of Assyria he was quick to collect treasure from the wealthy men of Israel in order to pay substantial tribute in silver (II Ki. 15:19–20). This passage names ‘Pul, King of Assyria’ as the recipient of the tribute, Pul being another name for Tiglath-pileser III, as stated in I Chron. 5 : 26, and indeed in his annals the latter boasts that he received tribute from ‘Menahem the Samarian’. The date at which Menahem paid this tribute is uncertain.

During the eighteen years of his reign Tiglath-pileser established the power of Assyria in the west, but while his own inscriptions supply a considerable amount of information about his conquests, they have been preserved in such a form as to make it very difficult to assign the military activities narrated in them to exact years in his reign.

The preceding two chapters have investigated the processes of social control associated with male–female sexual relations, particularly adultery. This chapter turns to the area of sexual relations between men, and attempts to show how the politics of reputation and gender also govern this complex field of social practices. Further, the discussion of homoeroticism pursues the theme of the ambiguity, ambivalence, and manipulability of norms, values, expectations, and practices introduced above. Here, Giddens' comment about the centrality of contradiction as a characteristic of social systems can usefully serve as a guiding light for the investigation.

Recent scholarship has succeeded in greatly advancing our understanding of “Greek Homosexuality.” Kenneth Dover and Michel Foucault have argued that the modern dichotomization of sexuality as heterosexuality/homosexuality does not apply to the ancient world, and they have shown how distinctions between active and passive roles in male sexuality defined the contours of the permissible and impermissible in paederastic courtship and other forms of homoerotic behavior. Among the Greeks, we are told, active homosexuality was regarded as perfectly natural: sexual desire was not distinguished according to its object. There was, however, a prohibition against males of any age adopting a submissive role that was unworthy of a free citizen.

Some Athenians in the classical period may have unjudgmentally thought that some men by nature liked boys, others women, still others both, but it does not follow that the normative categories of sexual roles associated with the dichotomy of homosexual/heterosexual were entirely absent.

The three preceding chapters have discussed the manner in which Athenian society encompassed two areas of problematic sexual practices: adultery and homosexuality. Building upon these investigations, the next chapter will attempt to analyze the way in which the regulation of such sexual behavior relates to more general questions of political ideology, particularly to democratic theory. So as not to leave this general discussion of the enforcement of morals vulnerable to the criticism that it relies exclusively upon material concerning sex and gender, the present chapter takes up aspects of the legal regulation of religious behavior. Although modern discussions of the enforcement of morals often confine themselves to the realm of sexual morality, the nature and scope of the statutory provisions for the enforcement of socio-religious norms is, in most legal systems, one of the most significant criteria by which to evaluate various aspects of the relationship of the individual and the family to the state and to the society as a whole. This is no less the case in classical Athens where the processes which regulate religious practices and beliefs are of central importance for an understanding of issues like the relation between law and morals, the place of individual liberty and freedom of conscience, and the link between democracy and toleration. Indeed, Plato's Republic and Laws bear witness to the recognition of the importance of religious conformity, as, in its own way, does the trial of Socrates.

Different legal systems address the social problem of adultery in a variety of ways. Some only prohibit men from engaging in intercourse with the wives of others, some punish all extra-marital intercourse, others ignore adultery altogether. Within these parameters, different societies may punish adultery as a public offense or a religious transgression, or treat it as a purely private wrong (or some combination of these). In the ancient world, for example, one finds all of these possibilities embodied in Assyrian, Babylonian, Biblical, Greek and Roman legislation permitting the summary execution of adulterers or imposing other legal penalties. Because of this diversity of possibilities, an examination of adultery may reveal much about general attitudes and patterns of regulation concerning sexuality and the family, as well as illuminating the relation of such regulation to conceptions of public and private. According to the multi-dimensional perspective set out in earlier chapters, such an analysis should encompass both legal and extra-legal forms of sanctions and control, and seek to uncover their interrelation.

Because considerable confusion has clouded previous discussions of the Athenian law of adultery, this chapter addresses the preliminary task of establishing what the relevant statutes provided, and then sets out what little we know about how the law was actually applied. The next chapter builds upon this discussion in attempting to place the practice of adultery within a broad context of social norms and practices.

Chapters 4-8 have set out an interpretation of the means of social control by which Athenians regulated certain aspects of their sexual and religious activities. Building upon the preceding discussion of particular anthropological and social theoretical approaches to social action, this interpretation emphasized the complexity of the dynamic relation linking law, norms, practices, and ideology in a “face-to-face” society. Reversing this movement from a general discussion of social action to very specific inquiries into homoeroticism, adultery, impiety, and the like, this concluding chapter shifts back to a more abstract level and attempts to draw together some of the strands of argument developed earlier. Specifically, it suggests a fundamental connection between the ideology of Athenian democracy and the patterns of social control elucidated above. Further, it addresses the theoretical question of the role of ambiguity, conflict, and contradiction in social ideologies and practices, and argues that such contradiction is not to be understood as an “aberration,” but rather as a central characteristic of social systems and the practices which reproduce them.

Privacy, democracy, and the enforcement of morals

Modern Western political thought, conditioned by the liberal tradition, perceives an intimate connection between privacy and the enforcement of morals. Indeed, in contemporary American constitutional law, the development of a fundamental right to privacy has served as one of the principal means used to defeat legislation on moral matters.

In classical Athens the law punished intentional homicide with death or perpetual exile. In addition, statutes clearly distinguished various forms of voluntary and involuntary homicide, as well as killings in self-defense, and described the various courts which tried such cases. In a number of its central features such a statutory scheme differs little from the treatment of homicide in most Western legal systems up to the contemporary period. Classical scholars and historians of Greek law have sometimes argued, however, that these provisions were “primitive,” in important respects. They point out, for example, that Athenian offenses fell into two procedural categories: the dike, or private suit, prosecutable by only the injured party, and the graphe, or public indictment, prosecutable by any citizen. The action for homicide belonged to the former. This categorization, they argue, shows that Athenian homicide law had not yet fully evolved out of the more “ primitive ” stage of self-help. Homicide, it is often concluded, was not of central concern to the state, but rather primarily involved the family.

Such explanations rely upon questionable assumptions involving evolutionary models of societal and institutional development. More generally, they also reveal the weakness of an unexamined positivist approach to legal institutions which asks only what the relevant statutes provide.

Although the notion of “privacy” might appear more immediately relevant to a discussion of social control and the enforcement of morals, for a number of reasons this chapter initially focuses instead upon the complementary opposition of “public and private.” First, the contemporary definition of the problem in terms of the nature and boundaries of “rights to privacy” or “individual autonomy” reflects preoccupations characteristic of modern liberalism, whereas ancient societies are commonly held not to have possessed concepts of rights and individual autonomy. Further, when we examine the recent judicial cases and the legal and philosophical secondary literature, we find a marked inability to agree about the nature and status of privacy or rights to privacy. Thus a prominent scholar in this area, in writing about this definitional confusion, identifies five major categories of definitions of privacy, all of which, he argues, are completely misguided. By proposing yet another he is not likely to have resolved the underlying difficulties.

For these reasons, rather than taking an abstract definition of privacy as a starting point, I will begin instead with a dichotomy conceptually prior to privacy: the contrast of the public and private spheres. Here we run little risk of entirely imposing modern categories upon the ancient evidence, for we find the antithesis of the private (idios) and the public (demosios) everywhere in classical Greek literature from Homer onwards.

The previous chapter described the legal norms and procedures which regulated adultery at Athens. The final section of that discussion, however, suggested that the social practices involving adultery were rather more complex than the prohibitions of the criminal law might imply. Although the law provided that the husband, or the appropriate magistrates, could put to death the adulterer taken in the act, some aggrieved spouses were perceived as responding with silence, extortion, or complicity. Although social norms of honor and shame linked the woman's sexual modesty to the honor of her husband and other male relatives, some women were thought to buy the favors of young men, and some men to acquiesce in the financial advantage they might gain from their wives' infidelity. Rather than inquiring what such practices tell us about the normative evaluation of sexual relations, a positivistic, instrumental approach to social control would dismiss all such conduct as “violations” of social and legal rules, as deviations from the norm. As Chapters 2–4 suggested, however, such rules represent but one facet of social control in “face-to-face” societies: they influence, but do not determine, the social practices through which they, and the social order, are reproduced. Further, though they may reflect the norms of ethical and legal ideals, they may vary widely from other normative expectations which play a central role in patterns of social conduct.

If privacy occupies a central place in contemporary discussions of the enforcement of morals, its role in the Athenian context was no less important. Plato, for example, clearly realized that if a state was to carry out a program of moral education privacy was one of the most significant barriers that would have to be overcome. Analyzing the conceptions of privacy in the context of political ideology at Athens is a relatively straightforward matter, for which Aristotle, Plato, and the Athenian orators provide a great deal of interesting evidence. The foregoing chapter has suggested, however, that while political ideology may be important, it is far from the whole picture, representing only one aspect of the social system that a full presentation must take into account. Here the question presents itself: how, for an ancient society, can the historian reconstruct the rich texture of social practice? In my view, comparative evidence from contemporary social anthropology can play a crucial role in such an undertaking. This chapter illustrates the use to which anthropological models may be put in sorting out the historian's “jigsaw puzzle” alluded to above. To put it another way, though ancient historians commonly label communities like classical Athens “face-to-face” societies, they rarely (if ever) provide a detailed account of the structures and practices which define such social systems. The richness of the anthropological record describing contemporary Mediterranean “face-to-face” communities vastly exceeds that available for any ancient society.

Unlike the first text, a Decree of the Council of Ten of Venice in 1458, the latter two provisions are not quaint relics of medieval law, but sections from the current Criminal Codes of the states of Virginia and Georgia (26 States have such legislation). In 1986 the United States Supreme Court declared them constitutional exercises “of the legislative authority of the state.”

This book represents an attempt to examine the problems of social control and the regulation of sexuality in an ancient society in a way that will be of interest to a broad audience. I have tried to show how a comparative approach to such issues can help to deepen our understanding of classical Athens, particularly in regard to the role of law in society. Further, I argue that this historical investigation can enrich our general appreciation of the relation of social and legal norms and the role they play in regulating complex social practices, like those associated with sexuality. In this regard, the argument aims at moving beyond a view of social control as implemented through a legal order which somehow imposes its norms upon society, coercing individuals into patterns of deviance and conformity. Instead, I develop an interpretation centered upon the study of social control as the dynamic interplay of legal and social norms within the context of ideology and practice.

In the past five years in which this study has emerged, friends and colleagues have contributed to its completion in a number of ways. Peter Garnsey, John Crook, Calum Carmichael, Tony Long, Felipe Gutterriez, and Stanley Brandes offered valuable comments on individual chapters. Herbert Morris, David Lieberman, Gregory Vlastos, Wolfgang Naucke, and Keith Hopkins have read significant parts of the manuscript and helped me to see it better as a whole. Further, Richard Sailer was kind enough to read through the entire final version.

MONEY-LENDING AND MORAL DEGRADATION

One of Theophrastus' more unpleasant Characters is the ‘Man Suffering from aponoia’ (vi). The word is almost untranslatable: ‘desperate boldness’ (Healey 1616), ‘recklessness’ (Jebb 1909), and ‘moral insanity’ (Theophrast 1897) are at best approximations. Theophrastus himself defines and characterizes aponoia as (§§ 1–6)

So the man smitten with aponoia feels no shame about putting himself beyond the pale of decent society through his repeated contraventions of accepted social norms. Given the nature of Athenian society, some unfortunates were bound to end up as inn-keepers, tax-farmers, and even brothel-keepers; but only a person with a severe personality defect would insist on being them all. Such is the background against which this Character's activities as a money-lender are to be read (§9):