Athena’s Way: The Jurisprudence of the Oresteia

Abstract

This article offers a substantial new interpretation of Aeschylus’ Oresteia, one of the most important literary texts to deal with the question of the rule of law, and one of Western jurisprudence’s founding documents. Perhaps in part because of it has fallen under the shadow of Antigone, the play has tended to suffer from a reductionist reading in which legal reason triumphs over the passions. The present article rereads the text drawing on recent scholarship on Aeschylus’ work. It argues that the central figure of the Furies has been misunderstood: they are not simply expressions of violence and passion; on the contrary, they are the most legalistic of all the figures in the play. The model of judgment introduced by Athena in the resolution of Oresteia does not pit law against emotion, or feud against process, but judgment against law. The trilogy begins by presenting the uncertainty of language as law’s curse, and the certain application of the law its cure; it concludes by radically reframing the question. Now the illusory certainty of law is the curse – and the uncertainty of language its cure. Athena’s way positions legal judgment as something more than the mere following of rules. The article then goes on to show that this approach not only casts a new light on orthodox jurisprudence. It is of profound relevance to the work of Giorgio Agamben and the theory of sovereignty he has famously expounded in Homo Sacer. What ultimately separates Athena’s rule of law from mere decisionism or Agamben’s executive and unlimited sovereignty are the external constraints to which she purposely submits herself. Athena demonstrates a vision of judgment as a participatory and transformative process. Above all, she insists on the essential role of public legal argument and public accountability in a discourse of legal legitimacy, which is not simply limited to judges or particular legal decisions. On the contrary, Athena connects the rule of law to a continuing discussion of legal values and judgments which is never finally settled, and in which all of us, as citizens of Athens, are participants.