A Sense of Injustice: Sophocles’ Antigone and Douzinas’ Theory of Justice

Introduction

Ever since the first performance of Sophocles’ Antigone,[1] in classical Athens (c. 5th century BC), the play has been the subject of much discussion, analysis, and debate.[2] Although the original setting of the play itself is mythical pre-Trojan War Thebes (c. 13th century BC) – already mythically and historically distant from its original Athenian audience[3] – this play has captured the hearts and attention of philosophers, jurists, and theorists for centuries. Of particular interest to my essay is the so-called ‘ethical turn’ of the 1990s,[4] in response to the ‘crisis of law’ in the 1970s and 1980s,[5] which renewed interest in the play,[6] including by Costas Douzinas.[7]

In summarizing the essence of his jurisprudence, in Critical Jurisprudence (2005), Douzinas helpfully distils down to six key themes that interact in a continual cycle.[8]Reason as the ground of law (which is force), which leads to disputation and conflict, potentially even violence and revolutionary struggle. While law seeks to equate justice with legality, the deep-seated emotional “sense of injustice”[9] drives resistance, revolution, and the pursuit of the impossibility of justice. Although modern, positivist law is founded upon the construct of power-law-reason, dubbed logonomocentrism,[10] deconstruction and critique works to question the status quo, in order to open the way to the continued journey towards the utopian vision of a cosmopolitanism to come[11] – “knowing hell, we imagine the possibility of paradise.”

In analysing the play of Antigone in light of Douzinas’ theory, I will argue that the play is powerfully concerned with similar notions of the impossibility of justice,[12] a deep and abiding “sense of injustice”,[13] and the questioning of the legitimacy of law based upon human reason. Aside from these issues, I will touch upon some of Douzinas’ theorizing around the controversial “right to resistance/revolution” in his most recent work.[14] Finally, I will seek to apply the insights gained from the play to the interaction between Queensland’s human rights legislation[15] and the recent amendments in late 2019 as a governmental response to growing unrest and protest around climate change.[16]

Considering Douzinas’ Early Work on Antigone: How my approach to reading was informed

Much modern (and postmodern) philosophical debate has been dominated by the dialectical analysis of Hegel,[17] as well as the psychoanalytical and ethical analysis of Jacques Lacan.[18] Similarly, Douzinas’ early essays on the Antigone are primarily focused upon Hegel and Lacan, as well as Heidegger’s ontological analysis of Sophocles’ Ode to Man.[19] Douzinas and Warrington appear to rely heavily upon traditional literary interpretations of the play,[20] such as Charles Segal,[21] Vernant and Vidal-Naquet[22] and Goheen.[23] These interpretations conceptualize the play as a binary conflict between Creon (representing law, the state and reason) and Antigone (representing kinship, the family, love and desire) – as Goheen summarized in stating that the play has “two centres of gravity”.[24]

As noted by Peter Euben,[25] this binary understanding inevitably privileges Hegel’s dialectical interpretation of the play, which ultimately privileges Creon’s ‘insist[ence] on rigid distinctions that inscribes hierarchies.’[26] As an alternative to this binary conception, Euben provides a framework of four “centres of gravity”[27] – Creon, Antigone, humanity (as depicted by the chorus, such as in the Ode to Man)[28] and the Athenian audience. Judith Butler’s Antigone’s Claim[29] notes her general agreement with Euben’s framework.[30] Also, in my reading of Butler, the main insight is her critique that both Hegel’s dialectic of state against kinship, and Lacan’s emphasis on kinship as a part of the Symbolic order as opposed to kinship as a social norm, were equally blind to the destabilizing implications of the violation of any conception of idealized kinship being embodied by Antigone as the fruition of an incestuous union.[31] Although Butler questioned their overall validity, she analyses their ideas in detail in order to rework those aspects of their theories.[32]

In applying Euben’s decentering framework, I have found Honig’s dramaturgical approach useful, which:

…treats the text as a performance which may succeed or fail rather than as an argument that may be true or false, right or wrong, paying attention to shifting contexts within the play, how information is circulated, what things are said directly to, or in the presence of, other characters, what may be overheard, things uttered in other character’s absence, or even things that seem to go over a character’s head.[33]

I found her close analysis of the political-historical context of burial politics[34] and of Antigone’s dirge-speech,[35] particularly useful in critiquing the logonomocentrism of Creon’s decree.

Logonomocentrism – Power-Law-Reason

            As an important part of the deconstruction work of postmodern jurisprudence, Douzinas described the construct between the legitimate exercise of power being based upon law, and the legitimacy of law being based upon reason. Legitimacy, within this positivist model, is equated with justice.[36] Creon’s legitimacy is based upon two sources: (1) Creon based his legitimacy upon the right of succession as next in kin to the throne,[37] and assumes, based upon the people’s acceptance of him to that position, that their obedience to his authority is obliged, irrespective of the right or wrong of his laws;[38] and (2) he based his legitimacy upon the reasoned principles of his governance: sound policies without fear, and not holding friendship above the good of the state.[39] Here, we see the power relying upon the legitimacy of succession (law, nomos), and the legitimacy of his laws based upon reasoned principle (reason, logos).

Considering the democratic state that was developing in the 5th century classical Greece,[40] it is interesting to consider the evidence from both Antigone[41] and Haemon[42] regarding the popular support behind Antigone. Also, there are a few times that Creon makes statements to the effect that he is uncertain of his own popular support[43] – eventually going so far as to claim legitimacy despite no popular support, rather than because of it.[44] However, returning to his initial speech asserting his legitimacy, it is clear that he assumed the legitimacy (and justice) of his rule and his laws – in particular, his principle that a patriot would not be treated alike to a traitor – upon the basis of succession and the reasonableness of his principles, especially this one principle he asserts numerous times.[45]

            Initially, Creon’s decree is challenged by Antigone’s ‘law’ – ‘Death longs for the same rites for all’.[46] This is in direct opposition to Creon’s ‘justice’ in treating the patriot differently to the traitor.[47] The conflict between Creon and Antigone becomes more complex and interesting when the final dirge-speech of Antigone arrives, where Antigone describes another ‘law’ of hers – a law which, in her final words, she asserts was ‘alone the law’ that inspired her action – a law of singularity, the uniqueness and irreplaceability of her brother, which could seem to contradict the law of equality for all.[48] Butler addressed this speech in Antigone’s Claim, seeing the two principles not as contradictory, but that the principle of equality married with the principle of singularity generated a unique call upon Antigone to love her brother as a unique, irreplaceable individual, in the same way as the law of the gods would have expected that each person who died would have had someone to answer this unique call for them.[49]

Butler’s approach can be contrasted with Honig’s analysis, where she characterizes this speech in terms of a ‘reason-making speech’ in justifying her ‘law’ – in contrast to (and as a parody of) Creon’s first speech which sought to justify his law and legitimacy.[50]

Honig draws out three important comparisons between Creon’s speech and Antigone’s dirge.

Firstly, based upon an analysis of the legal developments around burial rites by Pericles[51] – a shift between archaic, Homeric Greek burial rites which highlighted the unique individuality of the dead relatives, to the new, Periclean rites, which highlighted the importance of the polis (the city) and of the dead’s immortalization as a part of that polis, with a move away from the emotional, often vengeful, aspects of mourning towards a more socially acceptable form – the likeness to Creon’s edict is evident. Part of that oratory reflected the direction that parents who lost children (for example) should consider them replaceable. Thus, Antigone’s emphasis on Polynices’ irreplaceability could be considered as a parody upon Pericles’ oratory.[52]

Secondly, her dirge echoes Creon’s words to Ismene concerning Antigone’s replaceability – that Haemon could find another ‘field to plow’[53] – in the same way, Antigone says that she would have let a husband rot, because he would be replaceable[54] – which Honig considers as a mockery of Creon.

Finally, she echoes a legend in Herodotus’ history regarding a woman who begs for her brother to be saved due to his irreplaceability, and Darius rewards the woman by saving her son too.[55] Antigone’s reason-giving for her ‘law’ can be juxtaposed with Creon’s reasoning for his legitimacy and the ‘justice’ of his edict, in order to highlight the violence and injustice that can be done in the name of reason and law.[56]

Thus, rather than reading her dirge as a serious work of reasoning in support of the legitimacy of law (as Butler does), Honig suggests that it could be read as a parody and mockery of this construct of legal legitimacy based upon reasoned principles.[57]

The “Sense of Injustice” and the Impossibility of Justice

The “sense of injustice” grounds the conflict between Antigone and Creon, such as when Ismene, seeking to persuade her sister to refrain from defiance, is quickly interrupted by Antigone, ‘No, he has no right to keep me from my own.’[58] The foundation of mankind’s ‘mood and mind for law’[59] is experienced differently by Creon and Antigone – for Creon, reason grounds the legitimacy of state law, whereas for Antigone, this same ‘mood’ and ‘mind’ is experienced in her universal sense of what is just and what is unjust.

Antigone’s ‘gall to break this law’[60] is grounded in this “sense of injustice”, as opposed to an everlasting justice that no mere mortal can change.[61] She was certainly not going to suppress her sense of injustice ‘out of fear of some man’s wounded pride’.[62] In contrast, Creon’s sense of justice drives him to issue the edict in favour of the patriot as a friend of the city and against the traitor as an enemy of the state.[63] In both cases, statements, preceded by a firm ‘No!’ evince the emotion and force of violence involved in the conflict of different conceptions of justice which, in accord with Douzinas’ view, grounds the impossibility of a unifying theory of justice.[64]

A Consideration of Douzinas’ Neo-Marxian Inspired Utopianism and the “Cosmopolitanism to Come”

Related to Douzinas’ understanding concerning the impossibility of justice is his theory around utopianism,[65] drawn from Neo-Marxist theorists, in particular Ernst Bloch.[66] He went on to develop the idea of a cosmopolitanism to come, an impossible vision like a paradise, where justice could be achieved – a world to which those who seek rights and justice are aiming towards, despite the impossibility of ever arriving there. Ernst Bloch, in Natural Law and Human Dignity, suggested an inversion of death as a metaphor in the play as a picture of the utopian vision. [67]

Thus, when Antigone speaks of the glory to come as a consequence of her defiance in the name of justice and kinship,[68] and her reunion with her family in love,[69] although she may not have conceived of this vision of death as a paradisiacal utopia, it wouldn’t be too far a stretch to utilize her language as a metaphor for the outcome that defiance against what is considered bad law, and resistance against injustice, is striving towards. The glory, for Antigone, is eternal, much longer than the temporal here and now.[70]

Applying Antigone in Critiquing Human Rights in Queensland and the Right to Resist

In light of the strong connection in Douzinas’ work between the impossibility of a satisfying theory of justice, and the underlying “sense of injustice” driving conflict, the law (which is force, and can even amount to violence) must seek to legitimize itself, attempting to negate any natural claim to the controversial right of resistance and revolution, the powerful themes drawn out in Antigone can be applied in critiquing the limitations of Queensland’s human rights law,[71] particularly relating to the right to protest,[72] and the freedom of expression of political communication.[73] In 2019 – the same year that Queensland’s Human Rights Act was passed – the government sought to respond to the alleged threat caused by climate change protests to social stability.[74] The law related to the regulation of climate protestors was perceived publicly as a threat to the fundamental freedoms, although the Human Rights Act acknowledges the State’s ability to limit human rights (though, technically, only where they are reasonable, necessary, and for a legitimate purpose).[75] Whereas Antigone perceived herself to be alone and without support, those who resisted Queensland’s law had a measure of solidarity between themselves, if not some support from the public at large.

Conclusion

Having approached Sophocles’ Antigone, from its original historical context, and its various traditional receptions through time, I have considered those critiques offered to these approaches by Butler, Honig and Euben, and have chosen to read the play from a dramaturgical perspective, acknowledging the non-binary nature of the conflicts depicted in the play. In the light of Douzinas’ theory around the impossibility of justice, a sense of injustice, and the cosmopolitanism to come, I have argued that the play concerns to a great extent a critique of the rationalist legitimacy upon which modern positive law is based and highlights the challenges that law faces in coming to terms with the complexity of injustice in the world. Considering this complexity, I have briefly considered the challenges that governments face in attempting to regulate the right to resist and protest in Queensland.


[1] All references to Sophocles’ Antigone will refer to lines from Sophocles, ‘Antigone’ in The Theban Plays: Antigone, Oedipus the King, Oedipus at Colonus, tr Robert Fagles (Penguin Classics, 1984) 59 (‘Antigone’).

[2] For example, some of the earliest extant references to the play in Aristotle, Rhetoric (Digireads.com, 2020) Book I, Chaps 13 and 15; Book III, Chaps 16 and 17.

[3] Peter Euben, ‘Antigone and the Languages of Politics’ in Corrupting Youth: Political Education, Democratic Culture, and Political Theory (Princeton University Press, 1997) 147.

[4] Bonnie Honig, Antigone, Interrupted (Cambridge University Press, 2013) 17.

[5] Jane B Baron, ‘Storytelling and Legal Legitimacy’ (1998) 25(1) Law, Literature, and Interdisciplinarity 63.

[6] Honig (n 4) 23, citing Mark Griffith, ‘The Subject of Desire in Sophocles’ Antigone’ in Victoria Pedrick and Steven M Oberhelman (eds), The Soul of Tragedy: Essays on Athenian Drama (University of Chicago Press, 2005) 91.

[7] Costas Douzinas and Ronnie Warrington, Justice Miscarried: Ethics, Aesthetics, and the Law (Harvester Wheatsheaf, 1994) 25 (‘Justice Miscarried’); Costas Douzinas and Ronnie Warrington, ‘Antigone’s law: A genealogy of jurisprudence’ in Costas Douzinas, Peter Goodrich and Yifat Hachamovitch (eds), Politics, postmodernity and critical legal studies: The legality of the contingent (Taylor & Francis Group, 1994) 187 (‘Antigone’s Law’); Costas Douzinas, ‘Law’s Birth and Antigone’s Death: On Ontological and Psychoanalytical Ethics’ (1995) 16(3/4) Cardozo Law Review 1325 (‘Law’s Birth and Antigone’s Death’); Costas Douzinas, ‘Law Deathbound: Antigone and the Dialectics of Nomos and Thanatos’ in Desmond Manderson (ed), Courting Death: The Law of Mortality (Pluto Press, 1999) 163 (‘Law Deathbound’).

[8] Costas Douzinas and Adam Gearey, Critical Jurisprudence: The Political Philosophy of Justice (Hart, 2005) 18-43 (‘Critical Jurisprudence’).

[9] An important concept derived from pre-Socrates philosophy, as described by Martin Heidegger, Introduction to Metaphysics, tr R Mannheim (Doubleday Anchor Books, 1961), and utilized in Douzinas and Warrington, Justice Miscarried (n 7) 15, 133-35, 183-4, 225; Costas Douzinas, The End of Human Rights: Critical Legal Though at the Turn of the Century (Hart, 2000) 37, 293, 340, 354 (‘The End of Human Rights’); Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Routledge, 2007) 87 (‘Human Rights and Empire’); Costas Douzinas, The Radical Philosophy of Rights (Routledge, 2019) 118-9, 179, 182, 186 (‘The Radical Philosophy of Rights’).

[10] Costas Douzinas and Ronnie Warrington, with Shaun McVeigh, Postmodern Jurisprudence: The Law of Text in the Texts of Law (Routledge, 1991) 91 (‘Postmodern Jurisprudence’).

[11] Douzinas, The End of Human Rights (n 9) 319; Douzinas, Human Rights and Empire (n 9) 291.

[12] Douzinas and Warrington, Justice Miscarried (n 7) 28; Douzinas, The End of Human Rights (n 9) 321; Douzinas, Human Rights and Empire (n 9) 49; Douzinas, The Radical Philosophy of Rights (n 9) 102, 113, 131.

[13] Douzinas and Warrington, Justice Miscarried (n 7) 15, 133-35, 183-4, 225; Douzinas, The End of Human Rights (n 9) 37, 293, 340, 354; Douzinas, Human Rights and Empire (n 9) 87; Douzinas, The Radical Philosophy of Rights (n 9) 118-9, 179, 182, 186.

[14] Douzinas, The Radical Philosophy of Rights (n 9) Part III The right to resistance.

[15] Human Rights Act 2019 (Qld).

[16] Summary Offences and Other Legislation Amendment Act 2019 (Qld), amending the Police Powers and Responsibilities Act 2000 (Qld) and the Summary Offences Act 2005 (Qld).

[17] Georg Wilhelm Friedrich Hegel, Hegel’s Aesthetics: Lectures on Fine Art, Volumes 1 and 2, tr T M Knox (Clarendon Press, 1975); Georg Wilhelm Friedrich Hegel, The Phenomenology of Spirit, ed and tr Terry Pickard (Cambridge University Press, 2018); Georg Wilhelm Friedrich Hegel, Elements of the Philosophy of Right,ed Allen W Wood, tr H B Nisbet (Cambridge University Press, 1991).

[18] Jacques Lacan, The Ethics of Psychanalysis, 1959-1960: The Seminar of Jacques Lacan, ed Jacques-Alain Miller, tr Dennis Porter (Routledge, 1992), especially ‘The Essence of Tragedy: A commentary on Sophocles’ Antigone’ 242.

[19] Heidegger (n 9), referring to Antigone (n 1) ll 376-416.

[20] Douzinas and Warrington, Justice Miscarried (n 7) 29; Douzinas, ‘Law Deathbound’ (n 7) 191.

[21] Charles Segal, ‘Sophocles’ praise of men and the conflicts of the Antigone’ (1964) 3(2) ARION 46; Charles Segal, Tragedy and Civilization: An Interpretation of Sophocles (Harvard University Press, 1981); Charles Segal, Interpreting Greek Tragedy: Myth, Poetry, Text (Cornell University Press, 1986).

[22] Jean-Pierre Vernant and Pierre Vidal-Naquet, Myth and Tragedy in Ancient Greece (Zone Books, 1990).

[23] Robert Francis Goheen, The Imagery of Sophocles’ Antigone (Princeton University Press, 1951).

[24] Ibid 97.

[25] Euben (n 3) 139.

[26] Ibid 152-153.

[27] Ibid 152.

[28] Antigone (n 1) ll 376-416.

[29] Judith Butler, Antigone’s Claim: Kinship Between Life and Death (Columbia University Press, 2000).

[30] Ibid 5 n 8.

[31] Ibid 5.

[32] Ibid 19, 28-29.

[33] Honig (n 4) 6.

[34] Ibid Chap 4 (‘Mourning, membership, and the politics of exception: plotting Creon’s conspiracy with democracy’).

[35] Ibid Chap 5 (‘From lamentation to logos: Antigone’s conspiracy with language’).

[36] Douzinas and Warrington, with McVeigh, Postmodern Jurisprudence (n 10) 91.

[37] Antigone (n 1) ll 192-193.

[38] Ibid ll 748-751.

[39] Ibid ll 198-202.

[40] Edward M Harris, ‘Antigone the Lawyer, or the Ambiguities of Nomos’ in Edward Harris (ed), Democracy and the Rule of Law in Classical Athens: Essays on Law, Society, and Politics (Cambridge University Press, 2006) 41; Josine Blok, Citizenship in Classical Athens (Cambridge University Press, 2017).

[41] Antigone (n 1) ll 563-567, 570-571.

[42] Ibid ll 770-784.

[43] Ibid ll 182-183, 328-335.

[44] Ibid ll 820-825.

[45] Ibid ll 232-235, 585.

[46] Ibid l 584.

[47] Ibid ll 232-235, 585.

[48] Ibid ll 995-1005.

[49] Butler (n 29) 9-10.

[50] Honig (n 4) Chap 5.

[51] Emiliano J Buis, Taming Ares: War, Interstate Law, and Humanitarian Discourse in Classical Greece (Brill, 2018), 116-118; George A Sheets, ‘Conceptualizing International Law in Thucydides’ (1994) 115(1) American Journal of Philology 51.

[52] Antigone (n 1) ll 1003-1004.

[53] Ibid ll 641-643.

[54] Ibid ll 997-999.

[55] Honig (n 4) Chap 5.

[56] Douzinas and Warrington, with McVeigh, Postmodern Jurisprudence (n 10) 91.

[57] Honig (n 4) Chap 5.

[58] Antigone (n 1) ll 58-59 (emphasis added).

[59] Ibid l 396.

[60] Ibid l 498.

[61] Ibid ll 503-508.

[62] Ibid ll 509-511.

[63] Ibid ll 232-235, 585.

[64] Douzinas and Warrington, Justice Miscarried (n 7) 28; Douzinas, The End of Human Rights (n 9) 321; Douzinas, Human Rights and Empire (n 9) 49; Douzinas, The Radical Philosophy of Rights (n 9) 102, 113, 131.

[65] Douzinas, The End of Human Rights (n 9) 319; Douzinas, Human Rights and Empire (n 9) 291.

[66] Ernst Bloch, Natural Law and Human Dignity, tr D J Schmidt (MIT Press, 1988), citing and explained in Douzinas, The Radical Philosophy of Rights (n 9) 104.

[67] Bloch (n 66) 114, 120-121.

[68] Antigone (n 1) ll 31, 86-88, 112-13, 561-562.

[69] Ibid ll 985-993.

[70] Ibid ll 88-90.

[71] Human Rights Act 2019 (Qld).

[72] Ibid s 22 (‘Peaceful assembly and freedom of association’).

[73] Ibid s 21 (‘Freedom of expression’).

[74] Summary Offences and Other Legislation Amendment Act 2019 (Qld), amending the Police Powers and Responsibilities Act 2000 (Qld) and the Summary Offences Act 2005 (Qld).

[75] Human Rights Act 2019 (Qld) s 13.

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