An Application of Agamben and Cover to Sophocles’ Antigone and Australian Law

Introduction

I began my jurisprudential analysis of Sophocles’ Antigone[1] through a close reading of the play, exploring, in the first part, the question of legal legitimacy of morality and rights in light of Costas Douzinas’ theory of justice.[2] Now, in continuing my analysis and exploration of the application of legal theory in the understanding and interpretation of the Antigone, I will be begin in the first part of my essay by focusing upon the establishment and operation of Creon’s sovereign authority. My analysis of Creon’s sovereign power will mobilize Giorgio Agamben’s theory of sovereign power and the bare life.[3] In his works, Agamben builds upon Michel Foucault’s insights into biopolitics[4] and upon Walter Benjamin’s[5] and Carl Schmitt’s[6] insights into sovereignty[7] and the state of exception,[8] and in particular the exclusion of bare life such that death is no longer death, but just the ‘fabrication of corpses’. In bringing together evidence from the play related to Creon’s sovereign power and Agamben’s theory, I will demonstrate how the unique and useful formulation brought together by Agamben provides a clear understanding and explanation for the analysis of executive power’s source of legitimacy, both within the Antigone and beyond.

In the second part of my essay, I will turn to undertake a close reading of those parts of the Antigone related to Creon’s law, the exercise of his authority as the state’s judge, and the sentencing of Antigone. In analyzing this aspect of the Antigone, I will be drawing upon the works of Robert Cover, highlighting his development of the concepts of the ‘normative universe’[9] and ‘bonded interpretation’.[10] Through these conceptual frameworks, I will explain the relationship between the interpretation of legal meaning, the application and justification of violence of the law, and the role of the judge within the broader social system of normative values. This will include addressing the conflict between the normative universe under Greek unwritten law and the new normative universe that arguably Creon was trying to create. Finally, in the last section of my essay, I will consider how Agamben’s understanding of the relationship between sovereignty, citizenship and the exclusion of the alien can be utilized in analyzing limits on the capacity of the State to alienate indigenous non-citizens, as raised by the recent exercise of interpreting the Migration Act 1958 (Cth) in the recent decision of the High Court in Love v Commonwealth.[11]

Agamben’s Framework of Sovereignty: Law and Life

Within the exceptional context of the chaos following the demise of Oedipus as king, and the ensuing civil war between the sons of Oedipus,[12] Creon takes the reigns, and proclaims: ‘As I am next in kin to the dead, I now possess the throne and all its powers.’[13] In response to the sovereign exercise of power, the community states: ‘The power is yours, I suppose, to enforce it with the laws, both for the dead and all of us, the living.’[14] The keystone of the constitution of Creon’s new regime is laid in the exclusion of the traitor Polynices,[15] in a sense, not to death as a criminal, but worse, to a death that is not death – figured by his corpse remaining unburied.[16] As a consequence of her defiant disobedience, Antigone herself is proclaimed a traitor,[17] any rights she could claim are stripped from her,[18] and she too is sentenced to a death that is not death – figured by her living burial in the rocky vault.[19] From this broad characterization of the operation of sovereignty and exclusion in Sophocles’ Antigone, I will demonstrate how Antigone illustrates Agamben’s theoretical framework.  

The Paradox of Sovereignty and the State of Exception

Drawing up Schmitt’s classic definition of sovereignty[20] as being both inside and outside of the law, which itself was building up Hobbesian ideas of the place of the sovereign above and outside the social contract,[21] Agamben explains the paradox of sovereignty, by which the very authority by which the legal system is set up is itself constituted without a foundation within the legal system. [22] Whereas Schmitt’s theorizing around the relationship between sovereign and the state of exception was arguably temporary and in close relation to a sovereign decision regarding a factual necessity, Agamben theorized that instead this state of exception was the very originary violence upon which the sovereign state and its authority was founded[23] – and by implication, the state of exception was permanent and an ongoing reality underpinning the legal fiction of the legitimacy of sovereignty.[24]

In this sense, while on one hand, Creon asserted a continuity of sovereignty from Oedipus and his sons, upon the basis of a form of legal succession,[25] on the other hand, it could be argued that he was instead seeking to institute a completely new sovereignty by invoking the necessity precipitated by the necessity of reinstating order after the chaos of civil war.[26] In this sense, Creon’s assertion of sovereignty, as epitomized by his proclamation concerning Polynices’ body,[27] was the decision upon which the suspension of any former ‘unwritten traditions’ was instituted,[28] thus constituting his new sovereignty within the state of exception.

Bare Life – Inclusive Exclusion

            Agamben categorized ‘bare life’ as that form of life which ‘has the peculiar privilege of being that whose exclusion founds the city of men’.[29] Following from this, Agamben considered this violence of exclusion to be the fictional basis upon sovereignty would assert its own legitimacy.[30] Creon’s law regarding Polynices’ corpse, and by extension, anyone who would participate in his burial and mourning rites,[31] can be characterized as an inclusive exclusion,[32] by which Creon constituted his new sovereignty performatively in the very act of proclaiming this exclusion. Within the context of Greek cultural and religious mores, both the prohibition against Polynices’ burial (which excluded him from the traditional rites by which a dead person would be included among ‘the dead’)[33] and the sentencing of Antigone to be buried alive in the rocky vault[34] (which excluded her from life while not dying, a kind of living-death, an exclusion within a ‘zone of indistinction’[35] between life and death, so to speak) are examples of Creon’s use of inclusive exclusion in the institution of his new sovereignty over the city of Thebes.

Death that is Not Death

A final important concept developed by Agamben which is applicable in understanding the structure of the legal system within Sophocles’ Antigone are the related images of the ‘homo sacer’,[36] a human being who is no longer acknowledged as human, who may be killed within committing a crime, and a parallel image which Agamben develops in his ‘Remnants of Auschwitz’,[37] the Muselmann, the being whose slow death by starvation in the heart of the concentration camp ‘marks the threshold between the human and the inhuman’.[38] Their gruesome state prior to dying is unbearable, and, having been stripped of dignity and thoroughly dehumanized. “One hesitates … to call their death, death.”[39] Instead, their body (whether living or dead) becomes just another product of the grisly assembly line, in the ‘fabrication of corpses’.[40]

Both forms of exclusion – Polynices in a state of unburial somewhere between life and death, and Antigone’s living burial in the rocky vault – could be characterized as twin expressions of something akin to Agamben’s utilization of the ancient Roman ‘homo sacer’ or its modern expression in the Muselmann in the concentration camps, giving expression to the violent exclusion involved in the institution of sovereign power. It is in this sense of the ongoing power over life and death, by which Agamben explains the missing connection within Arendt’s work on totalitarianism and on the human condition,[41] as well as Foucault’s understanding of the modern phenomenon of biopolitics.[42] In contrast, Agamben’s inquiry into sovereignty strikes to the heart of the hidden intersection between sovereign power and biopolitical models of power which, rather than being a modern phenomenon, instead lie at the origin of sovereign power and the immemorial arcana imperii, upon which the legal fiction of legitimacy of the force of law has always rested.[43]

Interpretation of Creon’s Law and Sentencing through Cover’s Interpretive Theory

In approaching the interpretation of Creon’s law and his sentencing of Antigone through the lens of Cover’s theory of legal interpretation, it is of note that in one of Cover’s earlier works, he specifically addresses the character of Creon as judge in Sophocles’ Antigone.^[44] He only briefly mentions him, mostly in comparison to Billy Budd’s Captain Vere,^[45] another fictional character called upon to interpret law attached to the potential application of the death penalty. Cover notes Creon’s apparent one-dimensionality as compared to the depth of character study developed around Captain Vere in Billy Budd.^[46] This prelude only introduces the overall examination in this book of the judicial role in the affirmation (and abolition) of slavery in the United States.^[47] A similar discussion is developed in his later essay regarding to the origins of judicial activism and the debate over the court’s role in the protection of minority rights.^[48] In a sense, the culmination of this analysis was displayed in Cover’s ‘Nomos and Narrative’,^[49] where he discusses the place in which law is situated within the broader context of the so-called ‘normative universe’ in society,^[50] and the engagement with it through which legal meaning is created.^[51] Legal interpretation can have a role in affirming normativity as it is,^[52] but can also creatively innovate norm articulation,^[53] and have a role in changing the world (or even of creating new ones).^[54]

In ‘Violence and the Word’, Cover confronts an aspect of legal interpretation that he argues was being avoided within legal scholarship, the relationship between legal interpretation and the violence of law.^[55] ‘Legal interpretation,’ he contends, ‘takes place in a field of pain and death’.^[56] This graphic imagery is explained as the relationship between legal interpretative acts and the institution of, and justification of, acts of violence.^[57] Although one level, legal interpretation concerns the predictability of practical outcomes (i.e., predicting how a judge will decide a case),^[58] legal interpretation involves a binding relation between the elucidation of legal meaning of texts, the actions instituted performatively through the judge’s words (i.e., sentencing), and the social role of a judge within society^[59] (which hearkens back to Cover’s work on the relationship between law’s meaning and the ‘normative universe’ of society).^[60]

Creon’s Law, Sentencing and ‘Bonded Interpretation’

Cover’s interpretative theory was developed within the context of the American political/legal system which included a separation of powers and the expectation of judicial independence.^[61] Turning from the discussion of Creon’s sovereignty to the interpretation of Creon’s law and his sentencing of Antigone, the application of Cover’s theory requires that Creon’s activities be analyzed through the lens of his role as judge. Also, his law must be considered within the broader ‘normative universe’ of ancient Thebes. Our initial understanding of Creon’s law comes through Antigone’s communication to her sister concerning the ‘emergency decree’^[62] laid down as ‘martial law’.^[63] The law concerns the burial rites for the two sons of Oedipus: while Eteocles as a hero and patriot of the city will receive honour, Polynices, the traitor, will remain unburied and unmourned,^[64] and anyone who seeks to honour the traitor through burial or mourning would break the law and be liable to death by stoning outside the city walls.^[65] What is important for the first part of Cover’s ‘bonded interpretation’ is how meaning is given to the law by Creon as judge,^[66] in particular within the broader context of the ‘normative universe’ – either the ‘universe’ as it currently exists, or arguably, the ‘universe’ that Creon is seeking to create.^[67]

Creon makes it clear that the context within which his law exists seeks to articulate a norm of the distinction between patriotism and treachery towards the city-state.^[68] This language of the ‘patriot’ and ‘traitor’, and the interpretation of its meaning, continues to develop throughout the play.^[69] Relatedly, the normative distinction between ‘friend’ and ‘enemy’, which were initially utilized by both Antigone^[70] and the community,^[71] are picked up in the language of Creon in his explication of the meaning of his law.^[72] The language of ‘enemy’ and ‘traitor’ come together in Creon’s confrontation with Haemon his son.^[73]

Beyond the giving meaning to law (which he argues cannot be understood in isolation), Cover’s theory of ‘bonded interpretation’ requires a consideration to the activity of putting law into violence action in sentencing (and its relationship to the authoritative role and legitimacy of the judge)^[74] is most clearly demonstrated when our analysis is turned to the actual instances of sentencing in the play. The community responds to the proclamation of Creon’s law and in particular, his exhortation to avoid siding with those who break his orders,^[75] by stating, ‘Only a fool could be in love with death.’^[76] Although no explicit mention has been made previously by Creon of the death penalty, his reply makes it clear that for there exists within the ‘normative universe’ within which both Creon and the community shares an implication that breaking martial law makes one liable to death – ‘Death is the price – you’re right.’^[77] Thus, the application of a death penalty, and in particular, death by stoning outside the city, must be considered as an act of violence, which is intelligible within the normative universe of ancient Thebes.

Turning to the third element of Cover’s ‘bonded interpretation’, it clear that the violence act instituted through legal interpretation cannot be separated from legitimacy given to the role of the judge (and in a sense, their personal complicity with the outcome of legal interpretation).^[78] Creon’s confidence to publicly proclaim that Antigone would not escape the ‘most barbaric death’ is based upon his understanding of the legitimacy that the community generally accepts of his judgment.^[79] However, one of the challenging elements of the role of the judge within ‘bonded interpretation’ is its relationship to the broader ‘normative universe’ within which it acquires its legitimacy. Two contrary aspects of this ‘normative universe’ threaten the legitimacy of Creon’s adjudication of the law – firstly, the developing understanding that the community supports Antigone’s plight (in particular explained in Haemon’s confrontation with Creon),^[80] and second, the presence within the normative universe of the ‘unwritten traditions’ drawn upon by firstly by Antigone,^[81] but more authoritatively drawn upon by Tiresias the seer.^[82]

In a sense, this confrontation between Creon’s and Tiresias’ interpretations exhibits the clash of two ‘normative universes’,^[83] one which Creon, in attempting to create a ‘new world’ fails to account for. The outcome of the play, and the ultimate decision by Creon to overturn his own prior decision, even though too late,^[84] demonstrates the importance of understanding the role of a judge within legal interpretation and its interaction within the broader ‘normative universe’ within society.

Applying Agamben’s Theory to the Recent Interpretation of the Migration Act 1958 in the Case of Love v Commonwealth

Since federation, Australian law with regard to citizenship, naturalization and the category of alien is founded upon the exercise of the legislative head of power in the Australian Constitution.[85] Australia has a long history of exclusionary policies,[86] in what has commonly been known as the ‘White Australia Policy’.[87] Until 1948, Australian citizenship didn’t exist as a formal, legal category. Australian citizenship was instituted under the Australian Constitution by the Nationality and Citizenship Act 1948 (Cth) (later renamed as the Australian Citizenship Act in 1973).[88] Although formal citizenship did not exist, being a British subject as an Australian national (or prior to federation, as a colonial inhabitant) was an important aspect of the constitution of Australian society. Prior to the 1967 Referendum, the Indigenous populations of Australia were constitutionally mandated to be excluded from the census.[89] This was significant as the census was important in establishing political representation in proportion to population in the House of Representatives.[90]

Prior to the recent High Court decision in the Love case, citizenship and alienage were considered to be exclusive binary categories – if you were not a citizen, then you were an alien. The High Court case considered the scope of the constitutional head of power upon which the Migration Act was based: In light of the recognition of a special connection to country in Mabo (No 2),[91] could Indigenous people who were not formal citizens be excluded as aliens within the scope of the naturalization and aliens power? Controversially, the High Court decided that, due to the special connection to this country, the application of the Migration Act 1958 (which included ministerial authorization for the removal of visas) was limited in its application to Indigenous individuals. Thus, the High Court recognized a third category of non-alien non-citizens, thus (in light of Agamben’s theory of sovereignty and exclusion) including Indigenous non-citizens within Australia’s political life in a way that the sovereign authority of the executive had previously not recognized.

Conclusion

In my overall research project, I have engaged in an analysis of a jurisprudential reading of Sophocles’ Antigone through the lens of Douzinas’ theory of justice in considering the legal legitimacy of morality and rights, in a consideration of Creon’s sovereignty in light of the Agamben’s theory concerned with sovereign power, the state of exception and the exclusion of bare life, and finally, a consideration of the interpretation of Creon’s law and sentencing activities in light of Cover’s concepts of the ‘normative universe’ and ‘bonded interpretation’. I have also analyzed the implications of the Antigone, for the consideration of the limitations on human rights exercised in legally constraining the activity of climate change protestors within Queensland law, and finally, I have analyzed the constitutional and legislative foundations upon which Australia’s Migration Act was founded, and the challenges to the foundation of Australia’s sovereignty around the limitation of Indigenous recognition on the basis of Agamben’s theory of sovereignty.

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[1] All references to Sophocles’ play of Antigone will utilize Sophocles, ‘Antigone’ in The Three Theban Plays: Antigone, Oedipus the King, Oedipus at Colonus, tr Robert Fagles (Allen Lane, 1982) 40 (‘Antigone’).

[2] For example, Costas Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the Century (Hart Publishing, 2000).

[3] For Agamben’s books, I will be utilizing the recent publication of the whole Homo Sacer project in nine parts, in Giorgio Agamben, The Omnibus Homo Sacer (Stanford University Press, 2017).

[4] E.g., Michel Foucault, The History of Sexuality, Vol 1: The Will to Know, tr Robert Hurley (Pantheon Books, 1978) Chapter 5.

[5] Walter Benjamin, ‘Critique of Violence’ in Marcus Bullock and Michael W Jennings (eds), Walter Benjamin: Selected Writings, Volume 1, 1913-1926 (Harvard University Press, 1996) 236.

[6] E.g., Carl Schmitt, Political Theology, tr C J Miller (Antelope Hill Publishing, 2020).

[7] Agamben, Giorgio, ‘Homo Sacer: Sovereign Power and Bare Life’, tr Daniel Heller-Roazen in Agamben, Giorgio, The Omnibus Homo Sacer (Stanford University Press, 2017) (‘Homo Sacer’) 5.

[8] Agamben, Giorgio, ‘State of Exception’ tr Kevin Attell in Agamben, Giorgio, The Omnibus Homo Sacer (Stanford University Press, 2017) (‘State of Exception’) 165.

[9] Robert M Cover, ‘Foreword: Nomos and Narrative’ (1983) 97 Harvard Law Review 4 (‘Nomos and Narrative’).

[10] Robert M Cover, ‘Violence and the Word’ (1986) 95 The Yale Law Journal 1601 (‘Violence and the Word’).

[11] Love v Commonwealth (2020) 94 ALJR 198 (‘Love’).

[12] A picture eloquently painted by the Parados (Antigone (n 1) ll 117-172), and especially the proclamation by the Community of Creon as ‘the new man for the new day’ (Ibid l 174).

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

[14] Ibid ll 238-240.

[15] Ibid ll 222-231.

[16] Ibid ll 584-585.

[17] Ibid ll 731-32.

[18] Ibid ll 975-77.

[19] Ibid ll 870-74.

[20] Schmitt (n 6).

[21] Giorgio Agamben, ‘Statis: Civil War as a Political Paradigm’, tr Nicholas Heron in Agamben, Giorgio, The Omnibus Homo Sacer (Stanford University Press, 2017) 251.

[22] Agamben, ‘Homo Sacer’ (n 7) 5.

[23] Agamben, ‘State of Exception) (n 8) 226.

[24] Agamben, ‘Homo Sacer’ (n 7) 115-116.

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

[26] Ibid ll 179-182.

[27] Ibid ll 222-231.

[28] Ibid ll 505.

[29] Agamben, ‘Homo Sacer’ (n 7) 10.

[30] Ibid.

[31] Antigone (n 1) ll 222-231.

[32] Agamben, ‘Homo Sacer’ (n 7) 26, 72.

[33] Antigone (n 1) l 31, where Eteocles in contrast ‘goes down to glory among the dead’.

[34] Ibid ll 870-878.

[35] Agamben, ‘Homo Sacer’ (n 7) 76-77.

[36] Ibid 61-63.

[37] Agamben, Giorgio, ‘Remnants of Auschwitz: The Witness and the Archive’, tr Daniel Heller-Roazen in Agamben, Giorgio, The Omnibus Homo Sacer (Stanford University Press, 2017) 767.

[38] Ibid 797.

[39] Ibid 807.

[40] Ibid 808.

[41] Arendt, Hannah, The Human Condition (University of Chicago Press, 1958); Arendt, Hannah, The Origins of Totalitarianism (Harcourt Brace, 1973).

[42] For example, Foucault, Michel, The History of Sexuality, Volume 1: The Will to Know, tr Robert Hurley(Pantheon Books, 1978).

[43] Agamben, ‘Homo Sacer’ (n 7) 9.

[44] Robert M Cover, ‘Prelude: Of Creon and Captain Vere’ in Justice Accused: Antislavery and the Judicial Process (Yale University Press, 1975) 1 (‘Prelude’).

[45] Herman Melville, Billy Budd (Melville House, 2016).

[46] Cover, ‘Prelude’ (n 44) 1-2.

[47] Ibid 6-7.

[48] Robert M Cover, ‘The Origins of Judicial Activism in the Protection of Minorities’ (1982) 91(7) The Yale Law Journal 1287 (‘Origins of Judicial Activism’).

[49] Cover, ‘Nomos and Narrative’ (n 9) 4.

[50] Ibid 7.

[51] Ibid 44.

[52] Gal Hertz, ‘Narratives of justice: Robert Cover’s moral creativity’ (2020) 14(1) Law and Humanities 3.

[53] Robert M Cover, ‘The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation’ (1981) 22 William and Mary Law Review 639, 672-73 (‘Uses of Judicial Redundancy’).

[54] Robert M Cover, ‘The Folktales of Justice: Tales of Jurisdiction’ (1985) 14 Capital University Law Review 179, 191 (‘Folktales of Justice’); Stephen Wizner, ‘Repairing the World through Law: A Reflection on Robert Cover’s Social Activism’ (1996) 8(1) Cardozo Studies in Law and Literature 1.

[55] Cover, ‘Violence and the Word’ (n 10) 1601.

[56] Ibid.

[57] Ibid.

[58] Ibid 1610-1612.

[59] Ibid 1617.

[60] Cover, ‘Nomos and Narrative’ (n 9) 44.

[61] Cover, ‘Origins of Judicial Activism’ (n 48); Cover, ‘Uses of Judicial Redundancy’ (n 53). 

[62] Antigone (n 1) ll 9-10.

[63] Ibid ll 37-38.

[64] Ibid ll 31-36.

[65] Ibid ll 40-42.

[66] Cover, ‘Violence and the Word’ (n 10) 1610.

[67] Cover, ‘Nomos and Narrative’ (n 9) 44.

[68] Antigone (n 1) ll 215-221 for the patriot’s honour and ll 222-231 for the traitor’s indignity.

[69] Ibid ll 232-235, 327, 585.

[70] Ibid ll 11-12.

[71] Ibid ll 236-240.

[72] Ibid ll 588-589.

[73] Ibid ll 729, 732.

[74] Cover, ‘Violence and the Word’ (n 10) 1617.

[75] Antigone (n 1) l 245.

[76] Ibid l 246.

[77] Ibid l 247.

[78] Cover, ‘Violence and the Word’ (n 10) 1617.

[79] Antigone (n 1) ll 545-546.

[80] Ibid ll 777-782.

[81] Ibid l 505.

[82] Ibid ll 1090ff.

[83] Cover, ‘Nomos and Narrative’ (n 9) 44.

[84] Antigone (n 1) ll 1236-37.

[85] Australian Constitution s 51(xix).

[86] E.g., Immigration Restriction Act 1901 (Cth).

[87] Lakshiri Jayasuriya, David Walker and Jan Gothard, Legacies of White Australia: Race, culture, and nation (University of Western Australian Press, 2003).

[88] ‘Defining Moments: Citizenship Act’, National Museum of Australia website (Blog post, 29 April 2021). <https://www.nma.gov.au/defining-moments/resources/citizenship-act>.

[89] Australian Constitution s 127.

[90] Ibid s 24.

[91] Mabo v Queensland (No 2) (1992) 175 CLR 1.