Theses on Law, History and Time
Douzinas, Costas, Melbourne Journal of International Law
[This essay offers eight theses in the style of Walter Benjamin's 'Theses on the Philosophy of History'. Law constructs time as linear, turns history into legal procedure and uses it to create the authorised record of the past, to legitimise the present and prevent radical change in the future. Heidegger's ontological and Benjamin's messianic conceptions of time can be used to undermine dominant legal temporality. But only a return to Athens and politics promises resistance and reconciliation.]
CONTENTS Thesis I Thesis II Thesis III Thesis IV Thesis V Thesis VI Thesis VII Thesis VIII
In his Hellenica, Xenophon relates an extraordinary story. (1) In 403 BCE, when the Peloponnesian War had ended, the Athenian Democrats defeated the 30 tyrants who were ruling Athens subsequent to a coup. Cleocritos, the representative of the Democratic Party, could have acted as a vengeful conqueror and demanded the punishment of his enemies for the brutalities they had committed. Instead, his call to the Athenians was, 'let us forget the evils of the past.' (2) The demos passed a decree banning the recollection of these traumatic events and the raising of lawsuits related to them, and the citizens took the oath: me mnesikakein--not to remember the evils but also not to use memory as a tool for evil. (3) A clause in the decree exempted only the 30 tyrants and 31 of their henchmen. Instead, these 61 were executed. When one of the Democrats objected to the imposed forgetting, he was brought before the demos by the Democrat Archinos and sentenced to death. (4) After that, the evils of the past were forgotten.
There are clear precedents to this story. Herodotus relates the first prohibition on memory. (5) The Persians put down a rebellion of the Ionians in Asia Minor in 494 BCE. They conquered and pillaged the city of Miletos and set fire to its altars and temples. The Athenians were devastated by the catastrophe that had befallen their brothers in Miletos. When the earliest tragedian Phrynichus produced The Taking of Miletus, the Athenians were deeply moved; they cried and mourned and hated it. They fined Phrynichos 1000 drachmas because he had reminded them of their own misfortunes. It was decreed that the play should never be performed again, because it recalled the pathe, the passion of their kin, the Ionians and their polis; ie, the destruction of political identity. (6) The tragedy was condemned to Lethe, the fiver of oblivion.
The importance of forgetting is also found in the mythology of Athens. According to Plutarch, when Poseidon lost his contest with Goddess Athena to become the protector of Athens, he did not express a desire for revenge. The grateful Athenians deleted from their calendar the day of the battle, the second day of the month of voidromionos (September), because it was a sad memory for Poseidon, and they built an altar to Lethe on Acropolis. (7) The banned day initiated the institution of what the Romans called Dies Fasti and Nefasti--banned days, days of mourning on which only certain religious and legal acts could take place. The Greek word is imera apofras--the day that cannot be spoken. We can say that the lost day, the second of voidromionos, is the day of the polis, the time of politics, a time intimately linked with the origins of tragedy, the beginning of Western literature. Aristotle agrees, arguing that politics is what gives rise to revenge, or brings an end to it. (8)
Some 23 centuries later, the great historian of the French Revolution, Jules Michelet, wrote:
each death leaves something good behind, and demands that it be recalled. The magistrates must supply friends to those who have none. Because law and justice are more certain than our forgotten tenderness because our tears are shed so quickly, this magistracy is History ... I have exhumed the dead for a second life ... they live now with us who have become their parents, their friends. …