Fatal fictions crime and investigation in law and literature

Te Oresteia ends joyfully: Orestes is acquitted of the crime of matricide; the Furies become honorable; and both of these because Athens initiates the rule of law. According to an intuitively plausible interpretation of the Aeschylean trilogy, this joyful resolution is the result of a coolly rational transition from a primitive cycle of vengeance to a court-centric response to crime.1 While the House of Atreus was trapped in a net of self-perpetuating vengeance—“the stuff of passion and partiality”—the establishment of the court in the Eumenides proceeds via an enlightened grasp of the institutions of punishment, which is subject to robust standards of rationality and impartiality.

Te prima facie plausibility of this “rationalistic” reading—where “rational” processes are construed as excluding and opposed to the affective—poses a challenge for Nietzschean readings of the Eumenides. Tis is true for two reasons. First, it is incompatible with Nietzsche’s view of the value of tragedy, according to which tragic theater psychologically invigorates the audience member by presenting her with a beautiful transfguration of the agonizing aspects of life. Second, if the rationalistic interpretation of the Eumenides were true, this would entail that Nietzsche reveres Aeschylus partly for the same reasons he disdains “Socratic optimism,” which he takes to mark the death of tragedy.

Fortunately the rationalistic interpretation is largely misguided. Tis is not to say that the establishment of legal intuitions in the Eumenides is the result of irrational attitudes; my claim is rather that it involves a joint effort of reason giving, persuasion, and beautiful illusion. Its agents do display responsiveness to reasons, but these agents are simultaneously directed by a host of needs and desires, some nobler than others.

 Furthermore the joyful conclusion of the Eumenides depends heavily on the persuasive power of the Olympian gods, sometimes in direct opposition to rules of logical inference. In addition to outlining the partly arbitrary character of the establishment of justice, the frst section brings attention to the perseverance in historical Athens of privately inflicted sanctioning practices.

Nevertheless a Nietzschean reading of the Eumenides would not point to the arbitrariness present in the (genesis of the) rule of law in order to discredit it. Rather, as I argue in the second section, given that it puts an end to the cycle of “senseless resentment,” Nietzsche can be read as celebrating the formation of the Areopagus. Tis event is an instance of what he calls in the Genealogy the merciful self-overcoming of justice. 

Although justice arrives accompanied by joy in the Eumenides, this is not because there exists a constitutive relationship between virtue and happiness, as “the Socratic Optimist” claims. Te Socratic Optimist maintains, inter alia, that suffering is inessential for the transformation of individuals and communities. Te intellectual apprehension of truths is for him or her sufcient. By contrast, as I argue in the third section, the Oresteia evinces commitment to the Nietzschean view that the gates of justice are stubborn and in need of the wisdom of woe to pry open. While suffering is essential to this view of tragedy—and to this extent Nietzsche appears to retain a signifcant kernel of Schopenhauerianis —pessimistic-cum-resignationist it is not. 

Given that suffering, on the Nietzschean picture, ideally serves as a springboard for a distinctive form of human progress, the view on offer warrants the label Aeschylean Optimism.5 Why, though, should we care what Nietzsche or Aeschylus might have thought about suffering or justice—not an entirely unfair question. While many aspects of both Aeschylus’s and Nietzsche’s attitudes toward justice will be foreign to contemporary ears, a goal of this chapter is to turn to progressive voices of centuries past in order to illuminate our debate about the role of mercy in criminal law. Accordingly I conclude with a discussion of the transformative potential of merciful criminal sanctioning.

Practical Reasonableness and the Apollonian Te just and joyful conclusion of the Eumenides is a result of a transformation of suffering endured in the prior parts of the trilogy. Tat this is not a coolly

Mercy at the Areopagus

rational transformation is evident from consideration of the following three factors: (1) Apollo’s arguments and conduct at Orestes’s trial; (2) Athena’s persuasion of the Furies (Erinyes); and (3) historical evidence that motivates the prevalence of passion and partiality in Attic law. I hope to show that Nietzsche’s view of the Apollonian principle in Greek tragedy bolsters the appeal to each of these factors, which I discuss in turn.

The question of Orestes’s punishment is at the core of the Eumenides. Having killed his mother, Clytemnestra—in order to avenge his father and to regain the throne from Clytemnestra’s adulterer and co-conspirator, Aegisthus—Orestes is now hounded by the Furies, ancient goddesses of (especially familial) vengefulness. Under Apollo’s tutelage Orestes requests the counsel of Athena, who, upon the arrival of the Furies in Athens, organizes for Orestes something novel: a trial.

With a jury of twelve Athenians in place, Apollo offers in defense of Orestes’s matricide the following “true parent” argument:

Te so-called mother of the child
isn’t the child’s begetter, but only a sort
of nursing soil for the new-born seed.
Te man, the one on top, is the true parent,
While she, a stranger, fosters a stranger’s sprout,
if no god blights it. And I can prove it to you:
a father can give birth without a mother.
And here before us is our witness, child
of Olympian Zeus, daughter who never fed
and grew within the darkness of a womb,
a seedling that no goddess could bring forth.

As proof that the mother is inessential to reproduction, and therefore that Orestes cannot have killed a true parent, Apollo refers to Athena’s divine birth. Suspect though this argument may appear to the contemporary reader, the idea that the mother serves as merely an enabling condition (or “soil”) in reproduction is endorsed by Aristotle.7 In spite of the falsity of its conclusion, then, the “true parent” argument may have been offered (and received) in earnest. 

We might wonder what evidence could be supplied to justify the argument, but I will not pursue that question here. I put this worry aside because the role of the argument is at least partly undermined by Apollo’s lack of consistency about the father’s signifcance as a parent. Te Furies criticize Zeus’s chaining up of his own father, asking Apollo, “How do you square this with your argument?”

Apollo’s response? “You stinking, hideous flth, shunned by the gods / We can break bonds, we can slip out of shackles!” (Eu. 748–49). 

Apollo’s response appears to exploit an ambiguity in what it means to break “bonds”: chains on the one hand, and contracts on the other. It is no straightforward admission of Olympian dishonesty, but Apollo’s illusive nature is not difcult to discern.8 At a later moment in Orestes’s trial, the Furies (who occupy the role of the chorus) accuse Apollo of having once tricked their half-sisters out of exacting due punishment, that time with the power of wine:

CHORUS LEADER: You did the same thing, too, in Pheres’ house: you persuaded the Fates to let men hide from death. 

APOLLO: Is it so unjust to treat someone so kindly, Someone that pious, in his time of need?

CHORUS LEADER: You overturned the age-old covenant by duping those ancient goddesses with wine.

APOLLO: And when you lose this trial, you’ll vomit all your venom at the ones you hate—quite harmlessly. (Eu. 842–49)

Apollo’s tendency toward pragmatically driven deception is well accounted for on Nietzsche’s theory of tragedy. Nietzsche claims that two principles are interwoven in tragic drama: the Dionysian and the Apollonian, where Apollo is the “ruler over the beautiful illusion of the inner world of fantasy … the imaged world of dreams” (BT 1, 2). While the Dionysian principle maintains that ours is a world awash with suffering, unconcerned with human happiness, tragic art presents us with this terrible aspect of life but wrapped in the “pleasurable illusion of dreams” that the Apollonian affords (BT 4).

 Te logic of dreams permits non sequiturs, and while Apollo never admits to having double standards, he is self-conscious about the efcacy of anger in coming to an adequate judgment in the trial. In the course of defending Orestes before Athena, Apollo claims he has “spoken as I have to whip up anger in you who are called to set this matter right” (Eu. 747). Athena continues Apollo’s trend insofar as she is unconcerned with nonaffectively convincing the Furies, but her tack is one of spiritedness and persuasion (rather than deceptiveness and insult). 

First, Athena prefaces her own vote regarding Orestes’s culpability thus: “I acquiesce to the man in all matters [to d’arsen aino panta] (except that I choose not to marry) and I take the father’s side with my whole thumos [hapanti thumoi]” (Eu. 855 56).9 While the spirited element of the soul is sometimes characterized in the Republic as irrational and antagonistic to peacemaking,10 we need only consult Homer for evidence of a conception of thumos as politically concerned and responsive to reasons. Consider Odysseus’s manner of deciding how to act virtuously: “O woe is me, what am I to endure? 

It is a great act of cowardice if I should take flight, terrifed by the numbers of men; but it will be worse if I am taken alone; the son of Kronos put the other Danaans to flight. But why has my dear θυμός [thumos] discussed these things in me? I know that cowards leave the battle, but he who excels in battle must stand his ground strongly, whether he is hit or hits another.”11 Personifed as an interlocutor, Odysseus’s thumos contributes in deliberation over the course of action that he can “stand behind”; 

“it invigorates him to use his life in a manner that risks life in an honorable way.”12 Similarly, in appealing to thumos in casting her ballot for Orestes’s acquittal, Athena displays action that is both affective and concerned with political reasons. Tat is, Athena’s action is not “rational” in a narrow, nonaffective sense, nor is it irrational.

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