What have the Greeks ever done for us?
Rome had all the good laws and Athens had all the good plays. So, a jurist may wonder what use the Greeks could be to him. But he would do well not to pass tragedy over: it is not only great fun but also a window into the history and nature of law.
Athens was no Rome. Yet Rome would be unrecognizable without its Hellenic inheritance. The pantheon, ethos and – most importantly – philosophy of the Greeks helped to explain, justify and organize inter alia Roman law. This evolving legal framework eventually made its way into the law of much of the modern world. Yet, it is not obvious – at least to philosophers – why positive law should be necessary, and in exactly what way. Nor is it clear why law should be divided into public and private. Are permanent judicial institutions really required? Why not have wise tribal elders who dispense justice from their big tents? The great questions of law and justice are seldom easy to answer.
However, if read thoughtfully Greek tragedy provides compelling answers to these and other jurisprudential questions, often by way of addressing cosmic notions such as justice. Because the greatest Greek playwrights (particularly Sophocles, Aeschylus & Euripides) put philosophical notions at the center of their plays, Greek tragedy also illustrates jurisprudence, rather than merely arguing it. In this way tragedy is to jurisprudence what case law is to statutes. Finally, a close reading of tragic plays trains the moral imagination – always helpful in seeking justice – all the while imparting some history of law. It would be, well, tragic if I could not support these claims. So, let me say more about three of tragedy’s uses to jurists, especially those in the civil law tradition.
Aeschylus’s Oresteia gives some clues about why the division of power (a Roman public law practice) was already thought necessary in Athens. It begins to answer why we need permanent, formal legal institutions as well as the various public/ private divisions in law. Clytemnestra judges and finally executes her husband, ostensibly for killing their daughter. Her son, Orestes, follows up this ‘justice’ with matricide, later claiming “not without justice did I slay my mother”(Libation Bearers, 1027). Indeed, he seems to have done so at the command of Apollo. This chain of violence, which now also involves a battle between the gods for preeminence, is not going to come to an end if everyone continues to pursue justice by fiat. So, Athena steps in with a compromise. Instead of interested parties continually commanding justice to be done or doing it themselves, a disinterested jury should take the case. This court would dispense imperfect but definitive justice at a certain public place in Athens. That would replace the private, divine justice, which had the unfortunate effect of never coming to an end (e.g. If I kill a killer then I must be killed etc.—it is both perfect and interminable). The ‘tragedy’ of Orestes ends happily enough with praise of the new, court justice. The peace that it has brought forms part of the institution’s philosophical justification.
Major concepts of legal obligation are part and parcel of tragic drama: guilt, responsibility, authority, freedom, right, promise (contract), duty, etc. Modern legal concepts are present in nascent form in the divine and customary law of these tragedies. When Ajax tries to kill his former comrades (in Sophocles’ play by the same name) and then kills himself to avoid their revenge, a protracted discussion ensues about duty, i.e. customary law. What is owed to the dead, especially a dead enemy? Although the reasoning could have gone in many directions, divine law gives way to pragmatic reasoning: Ajax’s enemy, Odysseus, understands that a general principle must apply based on self-interest, since he too may someday be in Ajax’s shoes. The law must be general because anyone could find himself in Ajax’s position and in need of protection. The precedent is set as Ajax’s funeral begins.
Lawyers learn what law is; philosophers try to determine why it is that way, both historically and analytically. But there is also the question of ought: what should law be? This relates to justice, among other moral ideas. Is justice preferable to injustice? Most of us would say yes without a thought and, in general, it is true. But in specific cases, such as being a defendant on trial for fraud, one can imagine being happier winning the case than receiving justice. Thus: Is justice better than injustice, if injustice makes me happier? Many will recognize these questions from Plato’s Republic, a classic text in jurisprudence. However, Plato himself no doubt contemplated these questions while watching Athenian tragedy. By showing human nature at its vicious extremes, with virtue moderating, tragedies help develop the moral imagination that we need in order to correctly answer the “Why?” questions of justice. Through careful analysis of tragedy’s relation to law, jurists can also develop the analytical skills required to answer the “Why?” questions of law.
For those interested, I lead a seminar on Greek tragedy as jurisprudence during Leiden Law School’s Spring semester. Prof. Nieuwenhuis also offers a broader course on Law and Literature every Spring.