David Cohen, Law, Sexuality and Society: The Enforcement of Morals in Classical Athens. Cambridge: Cambridge University Press, 1991. Pp. xii + 259. $49.95. ISBN 0-521-37447-2.
Reviewed by Mabel L. Lang, Bryn Mawr College.
As well as being relevant to contemporary concerns about the right of privacy and the constitution, this is a very useful book for anyone who has anything at all to do with classical Athens. There may, however, be a danger that old-fashioned classicists like myself might be put off by the sociological verbiage and theory of the opening chapters, but it is necessary to persevere, for much of great value lies ahead. Or better yet, start with Chapter 9 to see the point of all the preceding argument, and then go back to check it out.
As "an exercise in historical legal sociology" (p. 5) "this study describes in a concrete historical context the way in which normative structures are reproduced, and the dynamic inter-relationship of legal and social norms as one aspect of this complex process" (p. 7). To supplement factual evidence about normative structures in matters of sexuality and religion in classical Athens it uses a comparative model put together from studies of contemporary Mediterranean societies. The Introduction concludes with an outline of the following chapters and a statement of the chief lines of argument to be followed in exploring the roles of law and social values "to a new interpretation of privacy, democratic ideology, and the enforcement of morals at Athens" (p. 13).
In chapter 2 the fact that in Athens prosecution in cases of homicide was a private (DI/KH) rather than a public action (GRAFH/) is used to parallel the difference in matters of sexuality between public law and private norms. More generally, in opposition to traditional notions of the enforcement of morals through legal constraints, C. uses theories propounded by Giddens, Bourdieu and Goffman to outline the way in which normative order and effective morals are constituted by social practices reflecting both rules and the resources which individuals manipulate in mutual interaction. And those practices do not instantiate any rational code but result from conflict, contradiction, and ambivalence; nor are obedience and disobedience in question as much as the various means of reacting to and relating with the norm.
How to reconstruct the social practice of classical Athens is the subject of chapter 3, which first justifies the use of contemporary Mediterranean societies as a comparative model exemplifying the politics of reputation (honor vs. shame), the politics of gender (male and female), and the politics of spatial differentiation (public and private). There is no assumption of historical continuity, but the wide range of societies from Portugal east to Lebanon and back again from Egypt to Morocco, which are all so similar to what we do know of classical Athens, is shown to make them a useful base for comparison. Obviously, some may object to this use of anthropology to make up for the ancient Athenians' failure to supply us with sociological data uncontaminated by the literary and rhetorical biases and purposes of dramatists and orators. But C. is the first to avoid over-generalization; so, for example, although the public/private dichotomy often echoes the male/female opposition, by treating the two separately he can better explore the full range and impact of each. (The argument here as elsewhere is not really abstruse but sometimes a second reading is necessary to give substance to a tangle of abstractions as in this sentence: "The fundamental normativity of such structural properties, serving as essential elements in the social control implicit in the reproduction of social systems, figures as one of the central theses of the following exposition." [p. 42]) The honor/shame opposition in the model is seen to be similarly gender-related and to be important not only in the public/private spheres but also in the neighborhood that mediates between them in creating social pressure toward the maintenance of order.
Chapter 4 is concerned with the public/private dichotomy and the role it played in social control in classical Athens, as it affected and effected ideology, law and practice. Evidence from the orators is used in defining the connection between reputation and spatial differentiation: honor for a man could be won in the public sphere and lost in failure to protect his wife and family in the private sphere. Dishonor (A)TIMI/A) deprived a man of his public (political) role, while honor for a man was to be known and public, for a woman to be unknown and private. In both cases management of appearances could affect the public opinion that operated as a form of social control.
In chapter 5 C. argues that, contrary to the general interpretation of Demosthenes' statement about justifiable homicide for sexual offenses, the term adultery was applicable only to an offense against the marital bond and procreation. If caught in the act the adulterer could be killed by the husband, if he was willing to risk prosecution for homicide (justifiable), or he could be taken off to the Eleven as a common criminal. But it seems clear that there was no public action (GRAFH/) against an adulterer, which implies that the act was not regarded as a public offense, as does also the fact that the adulteress' punishment was merely private: divorce and debarment from public religious life.
In "Adultery, women, and social control" (chapter 6) much evidence from the dramatists and orators is used as if they were concerned to reflect the current scene with accuracy and had no axes of their own to grind. Still, there can be no doubt that the "seclusion" of women admitted both economic and religious activity in the public sphere and that men's honor, in so far as it depended on their wives' chastity, was thereby put at risk. "In any society with arranged marriages, restricted courtship, and a double standard, adultery is a likely outlet for the emotional and social frustrations which such arrangements often produce." (p. 169) The why and how of adultery is thus used to show the need for both informal social control and the particular kind of legislation related to it.
In chapter 7 ("Law, social control, and homosexuality in classical Athens") it is shown that the laws relating to homosexuality reflect the ambivalence and anxiety in a society where only in male/male sexuality was there opportunity for sexual competition and reputation for the E)RASTH/S as well as potential disenfranchisement for the E)RW/MENOS whose submission and shame unfitted him for public responsibilities, whether or not the law againt hybris was applicable here. But in this area even more particularly than elsewhere the absence of laws prohiting specific actions should not be interpreted as implying social acceptance.
Then, so that it may be seen that sex was not the only area in which accepted norms could be re-enforced by law, chapter 8 ("The prosecution of impiety in Athenian law") takes up religion. Actual cases of offenses prosecuted on a public charge of impiety (GRAFH\ A)SEBEI/AS) include a wide range of religious and social acts or behavior, but neither extent nor manner of deviation from the norm was defined. C.'s insistence that the charge of impiety was extended to beliefs as well is based largely on his particular interpretation of the Platonic record. In any case, the law is seen both to reflect and seek to maintain the norms, however contradictory they may be.
Chapter 9 ("The enforcement of morals") shows how the patterns of social control previously described reflect the Athenian democratic concern with maintaining the difference between public interest and private affairs. "The democratic polis, then, does not attempt to root out immorality, but rather to keep its harmful effects out of the public sphere." (p. 231) It was only critics of Athenian democracy like Isocrates, Aristotle, and the later Plato who all recommend strict regulation in every aspect of the private sphere. Finally, returning to the subject of social systems in general, C. emphasizes the importance in their make-up of ambiguity, conflict, and contradiction.
I can not pretend to judge the niceties of anthropological/sociological theorizing, but I find their application to the Athenian scene stimulating, as is also their use to interpret ancient references and give them wider social implications. As far as C.'s view of Athenian law and society is concerned, perhaps Oliver Wendell Holmes saw it too in The Common Law: "the life of the law has not been logic, it has been experience."