Although democracy had its origin in classical Athens—what could be more democratic than an assembly whose members are chosen by lot?—the Athenian attitude toward sexuality in those days was very different from that which prevails in democracies today.
In his book Law, Sexuality, and Society, David Cohen reminds us that in classical Athens “a wide variety of [sexual] offenses brought some degree or another of loss of civic rights (atimia: literally: the state of being without honor).” An honorable reputation was of fundamental political important in Athenian democracy.
Demosthenes, Athens’ great orator, went so far as to say: “Of all forms of government, the most antagonistic to men of shameful habits is that in which it is possible for anyone to make known their shame. And what form of government is that? Democracy.”
Not that Athenians lacked a strong sense of the private domain. But they were far more civic-minded than citizens of contemporary democracy. The polis was not the impersonal mass society of our time but a face-to-face political community where considerations of honor and shame were of decisive importance in politics. In such a community men’s private vices were tolerated so long as they did not intrude into the public domain and corrupt public morality.
To take a hypothetical example: Athenian law might tolerate pornography in the home but not in a public theater. Similarly, the law would not prohibit “private” homosexuality, but it would not legalize it or dignify it as morally acceptable.
In fact, one Athenian statute partially disenfranchised any citizen who engaged in homosexuality for gain, whether as a boy or an adult. Such a citizen lost the right to address the Assembly and to participate in other important areas of civic life. The law even prescribed the death penalty for those who sought to take homoerotic advantage of schoolboys.
“Athenian law,” according to Professor Cohen, “did not punish immoral behavior as such, rather only immoral behavior which either harmed those unable to protect themselves or directly transgressed against the clearly demarcated public sphere.” For example, Athenian men who prostituted themselves were not tried and punished unless they engaged in political activities from which the law debarred them.
Athenian democrats therefore distinguished between moral and immoral behavior, and the distinction had the support of law.
Although no Athenian statute prohibited sexual intercourse between two male adults, accepting a passive homoerotic role could entail dishonor and social and legal censure. On the other hand, a man using another man “as a woman” was deemed by at least some Athenians as engaged in shameful behavior.
In the Athenian view, democracy is made possible by the rule of law, that is, of law-abidingness. It was well understood, however, that law-abidingness is rooted in morality, which begins in the family where children learn self-restraint, concern for others, and respect for parents which eventually metamorphoses into respect for lawful authority. The democratic state will perish if law and morality are severed. Morality endows the law with authority and even sanctity. But morality requires the support of public law. Lord Patrick Devlin put it this way:
“Society is entitled by means of its laws to protect itself from dangers, whether from within or without…Societies disintegrate from within more frequently than they are broken up by external pressures. There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions.
“The suppression of vice is as much the law’s business as the suppression of subversive activities…There are no theoretical limits to the power of the State to legislate against treason and sedition, and likewise I think there can be no theoretical limits to legislation against immorality.”
Even radical Athenian democrats held that although the law should not enforce an intrusive order regulating all aspects of life, it should nonetheless provide a delimiting order which defines the boundaries which the state or private individuals may not transgress. Hence democratic Athens, unlike democratic Israel under the tutelage of former Chief Justice Aharon Barak, refrained from legitimizing and thereby dignifying various sexual offenses such as homosexuality.
How different from radical democrats of today. Instead of a politics of honor we have a politics of shamelessness.