Characters:
Hylas— “[…] it were absurd to think God or Virtue sensible things […]”[1]
Demea— “I joined in alliance with you, in order to prove the incomprehensible nature of the Divine Being, and refute the principles of [those] who would measure every thing by human rule and standard.”[2]
A Chorus of Thesmophoriazusae— “And to all men a warning he shall be / Of the terrible fate that is sure to await / The guilty sin schemer and lawless blasphemer / And then he shall find that the gods are not blind / To what passes below; / Yea, and all men shall know / It is best to live purely, uprightly, securely, / It is best to dwell, / And to practice day and night what is orderly and right, / And in virtue and honesty to dwell.”[3]
Scene: A quad on an American college campus in 2004 during a protest against the use of torture by the U.S. military at Abu Ghraib prison
[Enter Chorus]
Chorus: Kill the playwright! Or, it would seem that he’s already dead. But that play was truly a jagged, bitter thing to sit through. We would just as soon deny it, and yet we find ourselves back here. A play about how justice derives from justification, about how virtue is but one of the masks that violence may wear. Would it be otherwise! Would we could pretend it otherwise! Yet look at the photos! A man covered by a black hood with electrodes streaming from his fingertips. A soldier holding a dog leash around the neck of a naked prisoner. Attack dogs set at prisoners’ heads; attack dogs set at their genitals. Bound men, prone on the floor, being undressed, humiliated, beaten, tortured. And the playwright tells us to look at what it is, not at what we would have it be. We have heard the justifications. ‘Torture works.’ ‘It stops terrorists.’ ‘It saves American lives.’ ‘It protects the innocent.’ We don’t want justifications. We want justice.
[Enter Demea and Hylas, deep in conversation]
Demea: It’s a question of human rights. How can you not be outraged?
Hylas: My dear Demea, outrage requires surprise, and I am not the least surprised. There was a terrorist attack on American soil, so the government declared a war on terror. The goal of the war is to advance the interests of those who are waging it, whether those interests are found in Afghanistan or Iraq or Guantanamo Bay. Such interests shall be pursued in the name of the war on terror irrespective of other considerations. I believe, Demea, the time for outrage has long since passed. The war was never going to be bloodless. We can have victory or we can have a clean conscience. We can’t have both.
Demea: But these photos are something new? They show captive, defenseless men being tortured in contravention of the universal declaration of human rights. These prisoners are being deprived of their rights as humans. A line has been crossed. And so we protest. For justice.
Hylas: But you don’t expect restitution, do you?
Demea: Why not?
Hylas: Because human rights are not a question of justice. They’re a moral argument and a diplomatic tool, but they’ve nothing to do with justice.
Demea: How can you say that? We have rights…
Hylas: We have rights as citizens of a country. I have a right to protest the war because it says so in the Constitution. If the president wants to prevent me from protesting, he can order people to stop me. But I have recourse to the courts as a neutral third-party arbiter. The courts are sworn to uphold the Constitution, so if I can argue that my protest is protected, the courts will order the president to respect my rights. If he persists, the courts can order people to oppose him and safeguard my rights. The president knows all this, so it’s in his interests to simply allow my protest rather than picking a fight he will lose. Crucially, however, is the fact that if it came down to a contest of force, the president would lose. There are enforcement mechanisms—men with guns—who can be used to defend my rights as an American.
In the case of human rights, there is no such enforcement mechanism, which means that human rights are not legal rights. The tortured prisoners at Abu Ghraib might appeal to international organizations, and those organizations might issue strongly-worded statements. But will they forcibly take over the prison? Will they arrest those responsible? Of course not. To do so would be to fight with the US military. Who would win that fight?
Demea: So your view is that human rights are meaningless?
Hylas: Not exactly. As I said, they’re a moral argument. Perhaps an aspirational one. As in, we would like it if everyone followed these rules, and we hope that someday everyone will. As a statement of values, it sounds nice. I’m sure everyone would prefer to act morally, all things being equal. However, if everyone did act morally, we would need a new conception of law.
Human rights are also a diplomatic tool. Having a list of agreed-upon norms makes it more costly for countries to violate those norms. A small country that violates human rights risks providing larger countries with a pretext to invade and violate its sovereignty. A large country that violates human rights risks losing allies and weakening its geopolitical standing. That being said, none of this makes human rights sacrosanct or absolute. They’re on a par with economic sanctions. They’re non-military interventions. They’re war by other means. But when we speak of rights under law, we speak of the rights of citizens, as recognized by a standing court and enforced, if need be, by violent coercion.
Demea: I don’t think of law that way. I wonder if many people do. Rather, I think of law as a codification of shared values striving towards virtue. People all consent to abide by the law as a way to live together. Disputes may arise, at which point a disinterested institution adjudicates the dispute with the hope of arriving at an optimal outcome. Thus, order is maintained, everyone is better off, and society works to become more virtuous.
Hylas: But where does virtue come from?
Demea: I think of Athene in ‘The Eumenides’: “I establish this tribunal. It shall be untouched by money-making, grave but quick to wrath, watchful to protect those who sleep, a sentry on the land.”[4]
Hylas: That is certainly an opinion. But have you seen ‘Hecuba’ by Euripides?
Demea: I have not.
Hylas: There’s a theater over there. Let’s go watch it. It is a play that offers a different opinion.
[Exeunt jointly]
Chorus: The play is set after the Trojan War. Troy has burned and its men have been slaughtered. Only the women of Troy survive, as slaves of the conquering Greeks. The Greek army and their Trojan captives are stranded in Thrace, awaiting favorable winds.
Polydorus, the youngest son of Hecuba and Priam, appears as a ghost. At the outset of the war, the boy’s parents had sent him to King Polymestor of Thrace in order to protect the child from the ravages of battle. Polydorus informs the audience that Polymestor murdered him and stole his gold as soon as it was clear that Troy had fallen. Now, the boy’s unburied body drifts on the water.
Hecuba then enters, an old, infirm woman tormented by life and dreams. She is informed that the Greeks intend to sacrifice her daughter, Polyxene, on Achilles’s tomb. Odysseus enters to take the girl away. Hecuba pleads and persuades, to no avail. Polyxene exits stoically and dies a dignified, pointless death.
While preparing to bury her daughter, Hecuba discovers the body of her son, Polydorus. She demands justice from Agamemnon as the leader of the Greek host. When the king equivocates, Hecuba takes matters into her own hands. She invites Polymestor and his sons to her tent. There, she murders the children and blinds the father.
Polymestor appeals to Agamemnon for redress. When Agamemnon demurs, Polymestor curses his tormentors. He prophesies that Hecuba will go mad, transform into a ravenous bitch, and drown herself. He prophesies that Agamemnon and Cassandra will be murdered upon their arrival in Argos. Agamemnon responds by having Polymestor cast onto an uninhabited island. Only then do the winds pick up. The Greeks prepare to sail home. Their slaves, too, prepare for the journey ahead.
[Enter Demea and Hylas]
Hylas: So how would you contrast the two plays?
Demea: Well, the earlier Aeschylus play, if I’m remembering it right, is a myth that tries to dramatize the origins of politics. Orestes has killed his mother to avenge his father and is thus pursued by the Furies. Apollo helps Orestes appeal his case. A jury sides with Apollo and Orestes. Athene casts the deciding vote. The old ways of justice—blood feuds and revenge killings—have led to cycles of violence that are unsustainable. The state or polis, in the divine person of Athene, agrees to adjudicate such disputes. The old gods give way to the new gods. Family clans give way to the state, which claims a monopoly on violence. Order, in this case a patriarchal order, is maintained by a dispassionate legal process. Everyone is better off, as peace allows for cooperation. And everyone acquiesces because the tribunal is virtuous and divine. And so law is born for the enrichment and protection of mankind.
Hylas: And ‘Hecuba’?
Demea: In ‘Hecuba’, there are no just, dispassionate gods to be found. The gods are so absent that they might not exist. People refer to good and evil, but they appeal to self-interest. The law could be upheld by a monarch like Agamemnon, but he is corrupted by his own desires, and he is checked by his need to palliate the mob. The mob could rule democratically, but in practice they support whichever demagogue flatters them the most. In the absence of power constrained by law, justice reverts back to cycles of violence.
Hylas: So who is right? Aeschylus or Euripides?
Demea: I don’t think they disagree. Aeschylus shows us how the system should work in theory. Euripides shows us how it works in practice. But the ideal fails to everyone’s detriment. When Agamemnon says, “Let’s hope we all get to our land safely and find our homes all in good order, now that we’ve rid ourselves of all this hardship,”[5] we’re not supposed to believe him. It’s an absurd thing to say. He’s failed in his duty to uphold the law, and more violence shall result as a consequence of his failure. But that doesn’t disprove the theory. Had Agamemnon been virtuous, the tragedy could have been averted.
Hylas: But think back to ‘The Eumenides’. What protections were offered women and slaves? What were offered foreigners? When Athene decides the matter, she decides it in favor of the man. “There is no mother anywhere who gave me birth, / and, but for marriage, I am always for the male / with all my heart, and strongly on my father’s side.”[6] This is not virtue. This is the imposition of a system that favors one faction at the expense of another. Which is what ‘Hecuba’ shows us. Euripides simply describes the system that Aeschylus has prescribed.
Demea: But I don’t advocate for Athene’s virtues, or for Aeschylus’s vision of society. I’m saying law is reaching toward virtue. If Athene had resolved to decide the case in favor of mercy or charity or some other virtue closer to your heart, would you still object?
Hylas: I would still be skeptical because I would not trust her. Or anyone, with power. The question of the Good as the cardinal legal virtue is a philosophical question. But whatever virtue is chosen, it will always need to be interpreted by corruptible people. And it will always need to be implemented by violence. We can abstract virtue up to heaven, but until our courts are run by angels with tanks and machine guns, that philosophical question will not describe the practice of law. The ideal legal system is only as good as the actions of its human guardians. Like all things ideal, it will be corrupted as soon as it touches humanity.
Demea: But surely you recognize that the characters in ‘Hecuba’ behaved badly?
Hylas: Yes.
Demea: And that they were worse off for it?
Hylas: Certainly.
Demea: And that they could have acted otherwise?
Hylas: They could have, but they didn’t.
Demea: But if they had been more pious?
Hylas: No, if they had been compelled to act better. If the rights of those slave women had been protected with arms. After all, that’s how they became slaves. They lost a contest of force, and thereby lost their rights under the law.
Demea: But it’s exactly that fact that Euripides is holding up to ridicule. Athene proposes a legal system that privilege men, and Euripides demonstrates her oversight. Athene proposes a legal system that grants rights to Athenians, and Euripides reminds us that the world doesn’t end at the city gates.
Hylas: Maybe. Or maybe he’s ridiculing those who would entrust to virtue what must be protected by force.
Demea: Why do you say that?
Hylas: Because I don’t think we’re offered another way out of Thrace.
[Demea and Hylas step to the back of the stage]
Chorus: Perhaps the way out is a more robust process for making decisions. One leader may be corrupt, but a democratic system should yield decisions that are advantageous for a greater number of people. A tyrant might choose to war over a question of honor, but a demos might restrain the tyrannical impulse.
Sadly, Euripides gives us Odysseus, an amoral rhetorician and a democrat. He informs Hecuba that the army has decided to sacrifice Polyxene, and that their will shall be imposed by consent or by force.
Hecuba first appeals to Odysseus’s sense of reciprocity. He was once in her power, and he begged for his life. She granted him clemency at that time. Odysseus responds with a shrug. “I’ve told you many things. All sorts of cunning words, to escape my death.”[7] Words for him are just another tool for exerting one’s will over another. They appeal to no higher law. Words benefit those who manipulate them; words betray those who hear them as sacred.
Hecuba next appeals to a sense of fairness—Helen should be sacrificed, not Polyxene. She appeals again to a sense of reciprocity—her kindness to Odysseus should be repaid in kind. She appeals to a sense of pity—pity for the suffering, bereft mother. She appeals to a sense of virtue—it is wrong to shed innocent blood.
Odysseus coldly refuses these pleas. The army has its reasons. The dead must be appeased. All have suffered. We, too, have our customs.
Democracy, in the play, is another name for mob rule. And the mob is swayed by dishonest demagogues, by passions and drunkenness and superstition and bloodlust. Yet the mob, united, is strong. Its strength cannot be broken by mothers’ pleas or martyrs’ wounds. For its strength lies in its superior force of arms. A cynical politician might turn the mob to his own ends. But the mob, united, shall do as it pleases. One might hope that it acts virtuously, but one fears that its interests lie elsewhere.
[Enter Demea and Hylas]
Demea: But modern democracy is not mob rule. In modern democracy, government is divided. Power is checked by power. Power is constrained by law. Elected representatives are loosely tethered to popular mandates as well as to institutional norms. Parties and bureaucracies mediate between the people and the exercise of power.
Hylas: Yes, and so it’s been built up over time. But doesn’t Plato’s critique hold? If the populace is ignorant then they will elevate ignorant leaders.[8] And if the people think it in their interests to do so, checks and balances can be eliminated. Government can be captured by vested interests. Populism is always in tension with oligarchy, and as populism can grow quite quickly into despotism, so too can oligarchy grow into imperialism.
Demea: Maybe? Does this describe the post-war world?
Hylas: In Russia, in China, in …
Demea: In America? There have been demagogues and there have been criminals and there have been tyrannical minds. But the republic is still standing.
Hylas: The same republic that tortures prisoners of war? That spies on its citizens? That fights hot wars in Asia and dirty wars in the Americas and cold wars in Europe? That was built on the dispossession of Natives and the enslavement of Africans? This is justice? Democratic justice?
Demea: The system we have allows for correction, and most of your examples are in the past. Again, we don’t live up to the virtues we espouse. But we work towards them. I believe torture is wrong. So I protest. I vote. The next government then refrains from torture. Measures are taken so it does not happen again. This is how the system works.
Hylas: Or, the government does what it wants by any means necessary. Then, it sells the people a lie, a lie disguised in the language of virtue. ‘Manifest destiny’ means wars of conquest. ‘Southern honor’ means slavery. ‘Liberation’ means imprisonment and torture.
Demea: I think that’s a limited understanding of human psychology. People usually believe what they say.
Hylas: Which makes it easier for charlatans to deceive them. A politics of rhetoric and empty promises favors the unscrupulous, the dissembling, the venal. And what sort of leaders do we end up with? The sort our democracy selects for.
[Demea and Hylas to the back of the stage]
Chorus: Polyxene refuses to argue with Odysseus. She agrees to die, preferring death to slavery. A messenger then tells of her sacrifice, of how she died with honor and dignity. Many Greek soldiers were moved by the girl’s nobility and self-control in facing death.
Polyxene died with dignity. And what good did it do her or her people? She died with dignity, and she still died.
[Enter Demea and Hylas]
Demea: Aren’t you a little moved by the story? Won’t you grant that such actions have the capacity to inspire virtue in others?
Hylas: And yet no one prevented the slaughter.
Demea: But the next time…
Hylas: The next time will be different. The next time there will be different people. Different reasons. Different justifications.
Demea: But the scene resounds millennia later. Surely its appeal must be universal?
Hylas: How many young girls have been slaughtered between then and now?
Demea: How many have been spared by compassion?
Hylas: OK, so in 416 BC during the Peloponnesian War the Athenians come to the island of Melos and demand submission. The Melians respond that such a dictate is neither fair nor right. The Athenians reply that, “right, as the world goes, is only a question between equals in power, while the strong do what they can and the weak suffer what they must.”[9]
Demea: So all law is violence. And when violence fails, negotiate.
Hylas: Not all law. Law can mediate between citizens of equal standing beneath a higher authority. But when violence is an option, violence will prevail. And in international law, there is no higher authority to appeal to.
Demea: Here you remind me that the Athenians wiped Melos off the map.
Hylas: They slaughtered all the grown men, sold the women and children into slavery, and colonized the territory.
Demea: Yet the Melians weren’t wrong to demand a better world. They weren’t wrong to decry injustice and cruelty.
Hylas: And one hopes they died with dignity. But they did die. What principle could we invent that would give them consolation? What is virtue’s reward for those who are dead and buried?
Demea: Virtue is attractive. It attracts allies. Nations survive through alliances. Virtue shuns vice, and vice corrodes. The iniquitous do not rejoice in their iniquity. They suffer for it. Evil breeds evil, and the evil man knows that by his actions he creates the nemesis that shall destroy him. After all, did the Athenians win that war?
Hylas: They lost because they invaded Sicily and overextended themselves, not because they decimated Melos.
Demea: But they invaded Sicily because they were following the same line of reasoning. “How can you [Athenians] avoid making enemies of all existing neutrals who shall look at this case and learn from it that one day or another you will attack them? And what is this but to make greater the enemies that you have already, and to force others to become so who would otherwise have never thought of it.?”[10]
Hylas: But you’re arguing strategy now, not virtue. You’re claiming the Athenians acted against their best interests, that they made a mistake. They lost the war because their decisions were strategically bad. Not because those decisions were morally bad.
Demea: I think you’re making a false distinction. Morally bad choices create negative-value contests. Virtuous choices create mutually beneficial outcomes. Part of the reason the reduction of Melos was strategically disastrous was because it was evil. Virtue will out, in the end.
Hylas: Or it just happened to this time? What happened to the Romans when they scoured Carthage off the face of the earth?
Demea: Civil war. Three generations of internal bloodshed because there was no longer an external enemy to channel ambition or unite against.
Hylas: I think that’s a bit of a stretch. The Late Republic was not without external enemies. Sulla and Caesar were not just fighting at home.
Demea: Still, the nature of their society led them into war. They created men who could but conquer and maim. It was only a matter of time before their militarism ravaged their own country.
Hylas: But everything’s only a matter of time, in retrospect. Given long enough, everything collapses and everyone dies. In this sense, all men are punished for their sins. History erases all. But is anyone rewarded for their virtues? We remember only those who survived.
[Demea and Hylas to the back of the stage]
Chorus: While preparing to bury her daughter, Hecuba discovers the corpse that was her son. Immediately concluding that her son Polydorus was murdered at the hands of his host and protector, Hecuba begins plotting how to bring the Thracian king Polymestor to justice.
As a slave, as a woman, justice for the bereaved mother requires an appeal to masters and men. So Hecuba turns to Agamemnon as the leader of the Greek host. As king, Agamemnon is responsible for upholding the laws of the gods. As a slave owner, he is responsible for defending the claims of his slaves. By appealing to Agamemnon’s authority, Hecuba must acknowledge that her country has been conquered, that her people have no authority here. She must acknowledge that she is no longer free, that her access to law is at the behest of her master.
Agamemnon quickly agrees to the facts of the case: that Polydorus was murdered by Polymestor for gold in contravention of the laws of gods and civilized men. So Hecuba pleads: punish Polymestor’s sacrilege and cupidity. It is the responsibility of the man who would claim to be king. “But strength is with the gods and with their own, sovereign laws. Our lives are based on these laws and with them we determine what is just and what is unjust. This law is now in your hands and if you disregard it and do not punish those who kill their friends and dare to plunder the shrines of gods, then there can be no justice for the people.”[11]
Agamemnon turns away, as if from his duty. Hecuba laments that law is conditional on persuasion, that appeals to universal justice are in reality propositions to a mortal judge. And then Hecuba makes Agamemnon a proposition: Agamemnon has taken Hecuba’s daughter Cassandra as a concubine, and Hecuba suggests that her influence with her daughter could touch upon Agamemnon’s enjoyment of Cassandra. Because she has some power to affect the judge, Hecuba claims justice. In fifty lines, she has gone from the exalted moral heights of Olympus to the fleshly temptations of the brothel, from the splendor of civilization to one man’s lust.
Agamemnon responds that his actions as king are bound by the army, and the army is friend to Polymestor and enemy to Polydorus. Actions have no moral standing. The favored can do as they like. The disfavored have no recourse. If Agamemnon were to act against the wishes of his subjects, he would be violently overthrown. All are protected by law, but the strongest faction maintains a veto, and it is the veto of the lynch mob.
Hecuba then offers Agamemnon plausible deniability. She will take justice into her own hands. The king need only look the other way. And the king accedes. He leaves, abjuring all responsibility, putting his hopes in fate and chance and other invisible forces. “It is everyone’s conviction, individually and collectively as a city, that the evil man suffers and the good man rejoices.”[12] As long as none need act to make it so.
And thus the imposing edifice of law quickly crumbles. Beneath the ruins lie the old ways of superstition, bribery, and factional vigilantes.
[Enter Demea and Hylas]
Demea: But not all men would behave as Agamemnon did. Sometimes, men grovel to save themselves. Sometimes, they refuse at all costs to renounce their principles. As long as we believe in freedom, we have to accept that all men can choose their actions, and that all men will sometimes choose basely.
Hylas: A better system would align incentives. A judge would be rewarded for a dispassionate dedication to the law. A scoundrel would be punished for yielding to outside pressure or selfish desire. I think the critique is that no such system is ultimately possible because at the root of it all lies the violent acts of corruptible men.
Demea: But there is no proof that a better system is impossible. Agamemnon, as king, might persuade the army. He doesn’t try, and the army’s position is assumed to be fixed and immutable. Similarly, Agamemnon takes the facts of the case as Hecuba serves them to him. We the spectator know those facts are correct because the ghost of Polydorus has told us. But Agamemnon doesn’t know that. He might have a public trial. Polymestor might break under cross-examination. The army might turn on a man caught in a lie about killing a child for gold.
Hylas: But trials don’t always arrive at the correct verdict.
Demea: They do a better job than the system described here. They also insulate the apparatus of the law—the officers of the court—from threats of public violence. And they provide accountability. Euripides might not have been wrong about the legal system in his time, but that does not imply that no better system is possible. We should not be so eager to discount the progress humanity has made in such collective endeavors.
Hylas: And yet prisoners were tortured at Abu Ghraib prison.
Demea: And I’m confident the perpetrators will be punished irrespective of the wishes of the army’s rank and file.
Hylas: But a truly just system would prevent torture from happening.
Demea: No. A truly moral species would prevent torture from happening. A just system can only try to restrain humanity’s worst impulses and incentivize our better judgement. And when we fail, as we shall, justice punishes transgressions and provides recompense to victims. It elevates moral arguments. Like in the Mytilenean debate.
Hylas: How is this at all like the Mytilenean debate?
Demea: The Athenians resolved to put the whole adult male population of Mytilene to death, enslaving all of the women and children, after the Mytileneans revolted against Athenian domination. After a night’s reflection, cooler heads prevailed, and the matter was put up for public debate. Cleon argues for the more severe course of action, while Diodotus argues for mercy. Diodotus’s argument is more persuasive, and the Athenians vote to commute the sentence and spare the people of Mytilene. The process of adjudication encouraged the Athenians to act mercifully and in accordance with reason and, in the end, they did.
Hylas: But Diodotus doesn’t appeal to virtue. He appeals to the Athenians’ self-interest. He argues that if the penalty for revolt is annihilation, every rebellion will have to be fought to the last man. Rather, it would be cheaper to allow surrender when you can, and people will only surrender if it’s in their interests to do so.
Demea: So it’s a system with good incentives.
Hylas: Only if the power balance is unequal. But another way to look at it is that the common Mytilenean peasant avoided being killed or enslaved only because a few more people in Athens bought into Diodotus’s strategic argument. This is not justice. This is not rights under law. This is a tyrant being capricious, and then commending himself for his exemplary tyranny.
Demea: That’s not how most people read it? And you could make the same argument about a court of law.
Hylas: And I might, when a poor kid is sentenced to twenty years for possession with intent, and the judge reduces the sentence to fifteen with good behavior.
Demea: But there is logic behind all of this. Power, to outsiders, always looks arbitrary.
Hylas: But justice is supposed to be universal. There should not be outsiders, if justice is to be worthy of the name. Instead, we find here a power imbalance, decided entirely by the whims of the Athenian demos.
Demea: But we will have power imbalances inevitably…
Hylas: But if the two states were on equal footing? Like Athens and Sparta? Then we have war. But where in all of this is there justice? It’s all just a contest of violence.
Demea: International law is more difficult because there is no higher mortal authority, granted. But if people can agree on norms and customs within a population, it is conceivable that they could agree on norms and customs across populations. Such debates advance that project.
Hylas: So what happened in Melos? The Melian dialogue comes many years after the Mytilenean debate.[13] What changed? Or had the strategic situation shifted so that what was once contrary to Athens’s interests became advantageous?
Demea: But you don’t think Diodotus was wrong?
Hylas: I don’t know. I think he was disingenuous. He was cloaking a power move in the rhetoric of expediency. And his argument works only as long as it’s expedient.
Demea: So an appeal to justice or morality or human decency would have been better. It would have been universally binding.
Hylas: No. Rather, perhaps Cleon was right. The game is empire, and you win or you die. If you play you play to win, and you win by imposing your will on others through violence and coercion. “[Y]our empire is a despotism and your subjects disaffected conspirators, whose obedience is ensured not by your suicidal concessions, but by the superiority given you by your own strength and not their loyalty.”[14] The Athenians preferred to pretend otherwise, and they spared Mytilene so they could later butcher Melos.
Demea: But Cleon is not for freedom. He scorns public debate. His logic is that all power should be concentrated in one person or in one empire, and that power is therefore the seat of justice.
Hylas: And he’s honestly describing the world as it is. Justice is defined by the powerful, and power emanates from violence.
Demea: I dislike such cynicism. I think it leads through anarchy to authoritarianism, striving ever after something more total. Yes, institutions are corruptible and men fall short of virtue. Yes, judges can be bribed or intimidated. However, if you use instance of failure to condemn and mock all appeals to virtue and justice, then all that remains is violence. You’ve proven your case once everyone agrees with you, and the world is a worse place for it.
Hylas: But not everyone agrees with me. People are eager to put blind faith in abstractions and institutions. If they were more willing to see the shortcomings of these systems, then they would be more vigilant in monitoring the mechanisms that make up these opaque processes, and reform and improvement would be easier to affect.
Demea: You’re nor a mechanic…
Hylas: Nor are you a priest.
[Demea and Hylas to the back of the stage]
Chorus: Hecuba takes Polymestor and his two young sons into Agamemnon’s tent. There, the Trojan women and their former queen enwrap their enemy in perfume and silks, as a female spider does to a fly. After the sweet talk of seduction, the women draw swords. They slaughter the boys and they blind the bound king. The last thing he sees is the death of his children.
Polymestor stumbles into the daylight and lashes impotently at the darkness that surrounds him. He has lost all of his power to rule. A blind man cannot ride a horse or command soldiers. A blind man shall not be king of Thrace.
Stricken and enraged, Polymestor appeals to Agamemnon for justice. Agamemnon appears. Polymestor argues that Thrace is a Greek ally, and as king of Thrace he killed a Trojan prince, the sworn enemy of all Greeks. Had he, Polymestor, not done so, he would have been remiss in his allegiance to Agamemnon. He would have risked a Greek invasion of Thrace, and thus would have been negligent in his duties as king.
Hecuba responds and impugns Polymestor’s motives for the killing. Agamemnon, risking nothing now, accepts his authority and agrees with Hecuba. He speaks of motives, not of actions.
Polymestor then foretells the deaths of Hecuba and Agamemnon. Agamemnon, in a fit of pique, renders his verdict. Polymestor is to be cast on a deserted island, to die alone.
[Enter Demea and Hylas]
Hylas: Surely that’s not how things should have played out.
Demea: I agree. Agamemnon works the situation to achieve his desired outcome and avoid culpability. He only punishes the powerless, those who can no longer mount an objection against his authority. He relies on divining motives rather than judging actions. And, in the end, he avoids ordering an execution that could imperil his standing, while also allowing his emotions to bias his judgement. Because the king abdicates responsibility, we are left with escalating cycles of revenge killings. And two dead unburied children for Hecuba’s one slain son.
Hylas: But what standing does Agamemnon have here? He’s a Greek king. Hecuba’s his slave, so he has some duty to her. But Polymestor’s a foreign head of state. Apprehending him and forcing him to stand trial is an act of war. Does Agamemnon have a responsibility to commit the Greek army to another war in order to bring Polydorus’s killer to justice? Especially considering that the Greeks would have executed the boy anyway? They only just sacrificed Polyxene…
Demea: Agamemnon could have appealed to the Thracians to hand the king over.
Hylas: Regime change? Meddling in another country’s government? Probably bribing factional leaders to ignite a civil war? Agamemnon doesn’t work for the CIA, and such things are generally considered to be illegal and immoral. As it happened, Agamemnon waited until Polymestor’s position in Thrace was untenable, and then performed a facsimile of justice. There was no one left to speak for the slaughtered children once their father had lost his political power. Once their father could no long lead an army against the Greeks.
Demea: An international tribunal…
Hylas: The Greeks are an international tribunal! If they were any more so it would be the creation of an empire. And empires are created by wars. Like the war in Troy.
Demea: But without some limiting principle, retribution will not end. Violence will never exhaust itself. Agamemnon will be killed for his failings and his killers will be killed and his killers’ killers will be tormented until some principle of justice, looking to the gods, is established.
Hylas: And I think that Euripides is arguing that this limiting principle cannot exist. Logic followed to its extremes will yield perverse results, like a decade-long war to reclaim a kidnapped bride. Even in moderate cases, the institutions that uphold justice will err or be corrupted.
Demea: But anarchy is still worse. And the relevant question is: as opposed to what?
[Demea and Hylas to the back of the stage]
Chorus: All that remains is Hecuba and her chorus of slave women. The poor mad mother, the fallen queen of Troy, is long past any protection. Over the course of the tragedy, she appeals to religion and she appeals to lust. She argues for herself and for communal welfare. She speaks in love and she speaks in hate. She cites responsibility and she cites strength. She lives as a slave and as a woman. There are no protections proffered to her kind. She has no reliable recourse to law. She is at the mercy of others. So she does whatever she can to survive. Words are just tools for her. They don’t resonate with meaning. They are suasions or preludes to violence.
And her chorus sings that this, indeed, is the plight of women. This, indeed, is the fate of weak nations. This, indeed, is the status of slaves.
[Enter Demea and Hylas]
Demea: So it’s like this. People living together in a society will naturally form different factions. Inequalities will develop. Some groups will be capable of exploiting other groups. This can lead to destructive and debilitating cycles of violence. Disputes will occur, and these disputes can lead to retributive killings. For the society to survive and flourish, people and factions need to be able to cooperate, maintain peace, and resolve disputes. Thus, there is a need for law.
There is always a danger of law devolving into an alignment of the powerful against the weak. Therefore, its origins are often shrouded in myth. That’s what Aeschylus gives us in ‘The Eumenides’. Solon, too, is more legend than man. Even if his reforms were merely the extension of certain basic protections to slaves and the poor, they had to take on a mythical status to prevent them from being violated.
Livy takes this idea further. When the decemvir Appius Claudius bends the law so he can rape Verginia, the plebians revolt.[15] Without common soldiers, the city is defenseless against its enemies. The result is that the laws are codified and the plebians are guaranteed protections. The desires of the patricians are forcibly curtailed at a certain point. Peace is maintained, the army can take the field, and Rome is saved.
Plato goes further still. He establishes his republic on a myth explicitly designed to maintain social harmony.[16] In this case, the myth has no claims to objective truth. It is purely instrumental, and it only matters that everyone believes it, or acts and speaks as if they do. It is a noble lie, a statement of virtue that none can question, because to question it would be to shake the foundations of social order. The myth establishes a legitimacy by which the rulers can rule, and it sets a limit to what any ambitious or corrupt actor can do. The myth provides a common belief structure that prevents the fictional society from collapsing into civil war or anarchy or malign tyranny.
Plato was too intrusive in his methods, but he has identified a crucial aspect of law. In order to keep order within a society, there has to be an unquestioned authority outside of the tumults and temptations of the social order. Religion, in the past, has played this role. As has God, or ritual, or an oath taken upon a sacred text. In my view, the law is always reaching up towards something commonly understood as sacred. Maybe human rights, or the Koran, or the US Constitution. These might all be myths, or at best flawed truths, but they have authority as long as people believe in them. They also have the advantage of making law into more than an expedient or a tool of power. They make law universal; they make it intergenerational. And they make the law more efficacious than it would otherwise be. Regardless of what this sacred authority is accepted to be, I choose to call it by the name of justice. And it’s the law’s ultimate responsibility, along with all those protected under it, to uphold justice. We risk more than we know when we scoff at such principles and abstractions. Abstractions are necessary because they are not touched by material concerns. They can be a much needed limiting principle.
Thus do I condemn the torture at Abu Ghraib prison. Because I would condemn it if it had been done to Americans. Because it violates my sense of the sacred, of what men owe to each other, of what rights men are guaranteed.
Hylas: I don’t share your optimism, or your faith. The truth of the matter, to me, is that nothing is sacred. And there are no sources of shared values, either within large diverse societies or across different societies. Abstractions can be limiting principles, perhaps, but ideas like race or class or faith have also been motive principles. And these principles can be and have been pursued to disastrous, genocidal ends.
So let’s take the US Constitution as an example of a foundational myth. Of course, it’s more than that. It grants the government its authority. It prescribes a framework through which legislators are elected, and it establishes the process through which they may govern. It assigns certain responsibilities to one branch of government and other obligations to another. And it establishes rights that citizens are endowed with that government may not infringe.
We all agree the Constitution can be amended and we all agree it can be interpreted and we may have disagreements over how to interpret its articles or over whether to amend its text, and we consider these disagreements legitimate. But we cannot abide an authority that refuses to recognize the Constitution. We cannot accept a faction that is dedicated to fighting against those who would uphold the lawful exercise of Constitutional norms. And we cannot allow the Constitution to be rejected by those who were too young to ratify it. In all these senses, the Constitution fits your definition of a sacred or foundational legal myth.
However, what is the Constitution in practice? A bunch of wealthy well-educated people get together behind closed doors and proclaim to the world what they’ve decided it means. Corporations and vested interests invest hundreds of millions of dollars in influencing this process. And they often succeed. And for every biased verdict, there is an entirely defensible, well-reasoned argument for why the Constitution would have it so.
These arguments may even be in good faith! The human mind is nothing if not a story-telling machine. Thinking is usually an exercise in constructing narratives justifying our biases to ourselves and to others. So the mechanisms by which Constitutional ideals are realized, these mechanisms are eminently corruptible.
To the powerful, the Constitution is a proof that when they get what they want they do so fairly and justly. To the powerless, it is an opaque process by which the rich get richer and the powerful take what they will. Your myth doesn’t work towards reform or progress. It only works to defend this order in whatever direction is expedient.
Until it doesn’t. Until its contradictions become unsustainable and the costs of complacency rise too high. Then, there will be violence. Not reform or progress, but cataclysm and collapse. And it will be taken as a revelation. The curtain will be pulled back, and all will see that it was only violence all along.
A more stable system would be smaller, with more of the population involved day-to-day in legislation, adjudication, and enforcement. More participation would mean that more people are governing themselves. There would be more limits on how law can intervene in people’s lives. A better system would be honest, and not wrap itself in robes of virtue. And it would check power with power, for only with force can force be checked.
If we had called the invasion of Iraq what it was—a conquest, and not an aspect of the war on terror—then we might have been more vigilant against the crimes of conquest. We might have prepared our soldiers to behave as occupiers within the rules of war. We might have avoided the excesses and crimes common to the righteous and the unconstrained. And we might have avoided the torture at Abu Ghraib prison, which I also condemn.
Demea: So do we agree?
Hylas: On this, I think we do.
[Exeunt jointly]
Chorus: Such is our complaint against Euripides: he looks at humanity as if he were alien to the species, with an unloving uncomprehending gaze. Characters make arguments that are not completely convincing, and their opponents make counterarguments that are not completely unreasonable. Who is right and who is wrong? We expect such myths to tell us, but Euripides’s tragedies steadfastly refuse us catharsis.
Moreover, the words in these characters’ mouths are endlessly malleable. People say one thing and if their speech fails to achieve their ends they simply say another. Regardless of what’s said, they act as they desire. Passion comes first, and the words come after. One might think that language, or even thought, is employed solely as a means of rationalizing and justifying an inexpressible and irrational will.
And so we begin to worry: is virtue a lie we invent to oppress? Is religion merely an excuse for exploitation? Is civilization a story we tell ourselves so we don’t have to face up to our savagery? Is justice a polite euphemism for violence? If we believed in God, or at least some kind of natural order…
But we don’t believe. In Plato’s ‘Republic’, Glaucon asks Socrates whether justice is merely a social construct. To illustrate his point, Glaucon posits a magic ring that grants the wearer invisibility, and thus the ability to act without fear of social opprobrium. “And this we may truly affirm to be a great proof that a man is just, not willingly or because he thinks that justice is any good to him individually, but of necessity, for wherever any one thinks that he can safely be unjust, there he is unjust. For all men believe in their hearts that injustice is far more profitable to the individual than justice.”[17] Socrates rejects the notion that a man can act unjustly without becoming unjust, and he asserts that being unjust brings with it its own torments. Sort of like how a heroin user cannot just get enjoyment from heroin without becoming addicted, and that being addicted to heroin can torment a person. Yet Socrates goes further: “Then this must be our notion of the just man, that even when he is in poverty or sickness, or any other seeming misfortune, all things will in the end work together for good to him in life and death: for the gods have a care of any one whose desire is to become just and to be like God.”[18] And further still: “[A]ll these [prizes and rewards] are as nothing in either number or greatness in comparison with other recompenses which await both just and unjust after death.”[19] And then Socrates proceeds to speak of the afterlife, reincarnation, and the immortality of the soul. But, of course, Euripides never read ‘The Republic’.
We don’t believe in an afterlife and we don’t believe in an immortal soul. But Euripides makes us uneasy in our disbelief, for we don’t want to claim his view of humanity as our own. We want life to be kinder than that, but we want to share his refusal to acknowledge an invisible, beneficent God. We do not wish to destroy Heaven in order to create Hell on earth. And yet we would be skeptical of a man-made paradise.
Euripides’s tragedies excavate the chasm between myth and reality. They exist in the space between who we pretend to be and the things that we do. They are written in the gap that divides language from the material world.
We are Thesmophoriazusae; we are women celebrating an ancient fertility rite. Today the women at the festival are going to kill Euripides for insulting them. Yet we know, in the end, hijinks will ensue and a peace will be negotiated. Things aren’t as serious as we feel them to be, and life can bring levity, too. Ideals shall crumble into dust, but violence shall exhaust itself. New ideals shall be constructed, only to again fall back to earth. And so on. “Merrily, merrily, merrily on to your own confusion go. / But we’ve ended our say, and we’re going away, / Like good honest women, straight home from the Play.”[20]
[1] George Berkeley. ‘Three Dialogues between Hylas and Philonous,’ 1713.
[2] David Hume. ‘Dialogues Concerning Natural Religion,’ 1779.
[3] Aristophanes. ‘Thesmophoriazusae,’ 411 BC; Translated by B. B. Rogers, 1905.
[4] Aeschylus. ‘The Eumenides,’ lines 704-706. 458 BC. Translated by Richard Lattimore.
[5] Euripides. ‘Hecuba’, c. 424 BC. Translated by George Theodoridis. www.bacchicstage.wordpress.com/euripides/hekabe-aka-hecuba
[6] Aeschylus. ‘The Eumenides’, lines 736-738.
[7] Euripides. ‘Hecuba’
[8] Plato. ‘The Republic,’ Book VI. 375 BC. Translated by Benjamin Jowett.
[9] Thucydides. ‘The Peloponnesian War,’ 5.84-5.113. Translated by Richard Crawley.
[10] Ibid.
[11] Euripides. ‘Hecuba’.
[12] Euripides. ‘Hecuba’.
[13] The Mytilenean debate took place in 427 BC. The reduction of Melos was in 416 BC.
[14] Thucydides. ‘The Peloponnesian War.’ 3.25-28 & 35-50. Taken from: thelatinlibrary.com/imperialism/readings/Thucydides6.html
[15] Livy. Book iii
[16] Plato. ‘The Republic’. Book III
[17] Ibid. Book II.
[18] Ibid. Book X.
[19] Ibid. Book X.
[20] Aristophanes. ‘Thesmophoriazusae’. Translated by B. B. Rogers.