The foundations of modern law lie in a play about the trial of a refugee. It is in Aeschylus’s Oresteia that we find the fulcrum on which law pivots from custom and religion to become a social contract, to which, in theory, at least, we all are parties. Human beings, not the gods, rationally have created a system of dispute resolution, to which we subordinate our irrational, piratical proclivities. From law as custom, symbolized by the titan Themis, whose blindfolded statue we place atop our court houses, come the impulses we seek through law to institutionalize: and no custom is more universally observed among primitive cultures than the obligation of hospitality to strangers. When the scope of expected rights was extended to protect the alien as well as the familiar, concrete custom became abstract justice. Our attitude toward foreigners thus measures the amplitude or meanness of our political vision, and probably predicts our prospects for survival.
Aeschylus, who died in 456 BC, wrote at the pinnacle of Greek power and optimism, a time when the aliens in Athens, called “metics,” were honored, and invited to participate in the major religious festivals of the city. The Athenians enjoyed a prosperous mercantile economy, powered by the genius of artisans from all over the “known” world. Like the Americans after World War II, the Athenians believed that their recent victory over the mighty Persians was more than a military victory; they felt it was also a moral triumph of civilization over barbarism. It was the time when the arts, literature, philosophy, architecture, which we now consider the glory of ancient Greece, were flowering. The Athenians, like the founding fathers of the United States (in spite of slave owning and patriarchy) loved jealously their democracy, and therefore prized debate and persuasion over raw force.
In the Oresteia, Aeschylus proudly celebrated his country’s supremacy-its civil society, in which all free men participated; its cosmopolitan economy; and the wisdom of its supreme court. By the end of the century, believing themselves invincible, having just defeated the evil empire of the Spartans with its oligarchic tyranny, the Athenians had sent their armed forces throughout their world. They traded their democracy for imperialism. Their over extended armies were destroyed in Sicily and a Spartan garrison on the Acropolis enforced the rule of a puppet oligarchy on the city of Athena. The cost of military adventure had bankrupted the Athenians. The democracy was thriving when Aeschylus wrote, but, even then, growing militarism augured the usurpation of justice by meretricious arrogance.
Despite submitting themselves to the rule of law within Athens, the patriots remained, collectively, pirates in their relationship to the rest of the world, launching preemptive attacks on their neighbors on various pretexts, invariably with the true objectives of controlling resources and trade routes, and consolidating military dominance. Their cruelty grew with their military successes. It might be argued that the love of law made Athens great and the abandonment of law brought her down. With the loss of empire, wealth, democracy, and freedom, the city was reduced to a Balkan mediocrity, where a government preoccupied with national security regarded strangers with the same suspicion with which timid people all over the world view foreigners.
That an evolution of law makes possible in the nation an increasingly complex and prosperous economy and a democratic society, is evident in ancient as much as in modern history, and the destruction of the nation coincides with the end of that evolution. Greek legends referred to a murky time before there was writing, a time when gods copulated with mortals, and human beings sacrificed their children to appease the appetites of the gods. The Odyssey is such a legend, and Homer describes how, after the sack of Troy, the great hero Odysseus, before heading home, makes a brief detour to attack the inoffensive coastal city of Ismaros, where he murders the men and enslaves the women. Piracy was an honorable vocation, and Homer describes the raid with the nonchalance we would expect to find in a Wall Street Journal report of how a modern tycoon made billions by speculating on international currency fluctuations.
By the time of Aeschylus, though, piracy had become, as it is today, the exclusive prerogative of the state. Obviously, international trade could not flourish on seas patrolled by freebooters. There is no reason to suppose that genetic human nature had changed, but mankind in the Greek world had made the conscious election to suppress individualistic privateering for the sake of the mercantile economy. The next logical step in creating a world of peace and prosperity would have been to elect to subordinate the larcenous proclivities of the state to a system of justice, but that step the Athenians were unwilling to take.
Thucydides, himself a general in the Peloponnesian war, reports how the irrational rapine of the ancient order reasserted itself when the Athenians refused to submit themselves as a nation to be ruled by law. An Athenian delegation to the island of Melos demanded the surrender of the city. The neutral Melians replied that they wished only to be left alone, and, being a democratic state like Athens, they claimed the right to be treated justly. The Athenians stated their case bluntly: “You know and we know, as practical men, that the question of justice arises only between parties of equal strength, and that the strong do what they can, and the weak submit.”
The Melians replied with the argument that it was in the interest of the Athenians to submit to the rule of law:
“As you ignore justice and have made self-interest the basis of discussion, we must take the same ground, and we say that in our opinion it is in your interest to maintain a principle which is for the good of all-that anyone in danger should have just and equitable treatment and any advantage, even if not strictly his due, which he can secure by persuasion. This is your interest as much as ours, for your fall would involve you in a crushing punishment that would be a lesson to the world.”
The Athenians preferred force to legal argument, and besieged Melos, which fell a year later. They killed all the men and sold the women and children as slaves. Eventually, however, the fall of the Athenian empire resulted in a crushing punishment that might have been a lesson to the world. Thousands of Greek prisoners of war perished in Sicily in quarries used as concentration camps. It was, obviously, a lesson that subsequent military adventurers-Romans, Franks, Turks, Japanese, Germans-like the Athenians, confident in their invincibility, refused to learn.
In Aeschylus’s Oresteia, the custom of blood vendetta yields to the deliberate choice to subordinate the irrational, personal appetite for vengeance to institutional rationality. Orestes arrives in Athens pursued by the Furies, who are crying out for revenge, because Orestes has murdered his mother. Unlike writers of modern television dramas, however, the Greeks understood that the psychological and material antecedents of murder may be complicated. The killing of Orestes’s mother Clytemnestra is the result of the curse that has haunted the house of Atreus for generations. To Aeschylus, the Trojan war was ancient history, “embroideries out of old mythologies,” as Yeats said. In the long ago era of human sacrifice, Tantalus of Lydia served morsels of his roasted son Pelops to his guests, the gods, who had dropped in for a visit. The outraged gods sent Tantalus to the underworld, where he is tantalized in eternal hunger and thirst, and put Pelops back together, except for a shoulder, which they replaced with ivory, because Aphrodite, more credulous than the others, had taken a bite of the feast.
Pelops’s son Atreus shared his grandfather’s penchant for practical jokes, and regaled his brother Thyestes on the flesh of two of Thyestes’s sons, which led Thyestes to curse Atreus and his descendants. Atreus also fathered Agamemnon and Menelaus, the generals of the Greek army in the siege of Troy. Before the Greek ships could leave for Troy, however, Agamemnon sacrificed his daughter Iphigenia to still the headwinds that prevented their sailing. Iphigenia’s mother Clytemnestra took offense and, with the assistance of Thyestes’s surviving son, killed Agamemnon when he returned from Troy ten years later. Thus it fell to Agamemnon’s son Orestes to avenge the death of his father. The curse of the house of Atreus in essence was the inviolable custom that blood must be paid with blood. That custom was embodied in the Furies, who came into being long before the gods were born.
Orestes is trapped in the curse when he arrives in Athens. Clytemnestra warns him against murdering her, “Watch out-the hounds of a mother’s curse will hunt you down.” But, says Orestes, “How to escape a father’s if I fail?” The dilemma is resolved when humanism replaces custom as the source of law. The furies complain,
Such is your triumph, you young gods,
world dominion past all rights.
Breaking the god’s first law, he rates men first,
destroys the old dominion of the fates.
The Athenians do not deny the irrational, the vengeful and angry part of the human psyche, but they seek to conform it to law, to what modern Americans would call “due process.” Athena reminds them,
But they [the Furies] have their destiny too,
hard to dismiss,
and if they fail to win their day in court-
how will it spread, the venom of their pride,
plague everlasting blights our land, our future.
Athena reconciles the claims of the curse, irrational man’s lust for revenge, with the social order without which man’s irrationality will destroy him: She appeals to the Areopagus, a human court, the institutionalization of rationality-a jury-, for the management of irrationality. She says,
summon your trusted witnesses and proofs,
your defenders under oath to help your cause.
And I will pick the finest men of Athens,
return and decide the issue fairly, truly-
bound to our oaths, our spirits bent on justice.
After a trial, Orestes is acquitted, because he already has been punished enough. The importance of the process, however, is not so much the triumph of compassion over anger as the subordination of fury to law. Even an alien may claim justice in the jurisdiction of Athens. The visceral custom of family based blood feud is replaced with an abstract entitlement of all men to due process. The Furies, fittingly, are transformed and renamed “Eumenides,” as the thirst for justice, channeled through institutional rationality, is acclaimed guardian of the happiness of Athens.
Aeschylus’s city, then, is the model for the world, and its fortune is bound with its treatment of its guests. The play ends with a triumphant procession, and foremost among the metics, the resident aliens, are the Furies, themselves. Athena reminds the Athenians,
Exalt them always, you exalt your land,
your city straight and just-
its light goes through the world.
Though it was the genius of the Athenians voluntarily to institutionalize the submission of individual appetites to rationality, of the infantile self interest of individual pirates to the order that made national peace and prosperity possible for a time, it was the failure to take the next step and subordinate national piracy to the rule of law that doomed the empire to the crushing punishment that should have been a lesson to all the world. What is appalling is that the Athenians could not appreciate the argument of the Melians. Like the Persians before them, the Athenians were blinded by their own magnificence, convinced that they never could be defeated, and so refused to subject themselves to the rule of justice, which it had been their genius to create. Yet only the powerful, like the Athenians, could establish the rule of law over the piratical ambitions of nations, precisely by making the same rational choice they had made to control individual crimes-to submit to it themselves.
There is no reason that human beings could not make the conscious choice to rationalize international dispute resolution by voluntary submission to a criminal tribunal, quite as logically as they consciously have chosen instead to perpetuate the law of tooth and claw. We may elect to persist in our choice to torment our guests and exhaust our resources in endless brutality. But why should we? In an era when the pirate among us, United States Department of Homeland Security, keeps hundreds of innocuous foreigners in jails for months and years, when the rule of law domestically is in doubt, it may appear naïve to hope that the mightiest of nations will submit to the jurisdiction of higher courts. But if rational self interest guides us, we will do so.
Aeschylus reminds us in the story of a refugee whose search for asylum leads to the foundation of our modern concepts of law that we have a choice. The very last lines of the Oresteia resound with optimism that justice and necessity may be united by the deliberate labors of human beings:
This peace between Athena’s people and their guests
must never end. All-seeing Zeus and Fate embrace,
down they come to urge our union on-
Cry, cry, in triumph, carry on the dancing on and on!
It is not yet too late.
JOHN WHEAT GIBSON practices immigration law in Dallas, Texas. He can be reached at: firstname.lastname@example.org
Homer, The Odyssey, translated by Robert Fitzgerald, Anchor Books, 1963.
Aeschylus, The Oresteia, translated by Robert Fagles, Penguin Classics, 1977.
Thucydides, The History of the Peloponnesian War, translated and edited by Richard Livingstone, Oxford University Press, 1960.