[N]one shall entomb him or mourn but leave him unwept, unsepulchered, a welcome object for the birds, when they spy him, to feast on at will.
Many an educated reader - and many an educated lawyer in particular - will have encountered the line I've just quoted, as well as the name I have quoted in the title to this post. These are words spoken by Antigone, apropos an edict prohibiting entombment of her brother, Polynices, in the Attic tragedy that bears her name. Polynices has made war on his own polis, Thebes, and for this reason Creon, the ruler of Thebes, has decreed he is not to be accorded the rites that both sacred and customary law prescribe. The 'luckless corpse of Polynices' is to be left to be eaten by carrion-birds. A resultant clash of contrary obligations - that to obey ruler-posited law on the one hand, that to obey divinely and custom-posited law on the other hand - is of course what renders Antigone's predicament 'tragic' in the classical Greek ('damned if you do, damned if you don't') sense rather than in the watered-down, contemporary sense per which 'tragic' is roughly synonymous with 'unfortunate.'
I'd like to suggest here that a cognate tragedy to Antigone's is now in the course of enactment in Cambridge, Massachusetts, where the family of Tamerlan Tsarnaev, the accused Boston Marathon bomber killed in the course of his apprehension by authorities, is finding it impossible to locate a cemetary at which Mr. Tsarnaev can be properly interred.
To be sure, there are obviously critical differences between the Tsarnaevs' case and that of Antigone. One is the irony that in the present instance it is private parties who are refusing proper burial while ultimately a state institution will likely be that which accords it. Another, related distinction is that the tragic clash of principle in the present instance is not between divine or customary law and royal decree, as in Antigone, but between the former on the one hand and an apparently deeply felt imperative to express and even 'live out' disgust and disapproval on the other.
Nevertheless, I think we shall ultimately agree that the similarities between the Tsarnaevs' plight and Antigone's are more salient than are the distinctions. That is primarily for two reasons. The first is that in both cases, the clash of principles at work can indeed be understood as a clash between admittedly compelling principles. The second is that, again in both cases, it seems nevertheless clear which principle must ultimately prevail.
As for the first of these, I trust it is obvious that both 'sides' of Antigone's predicament are compelling. Divine and customary law in the polis are binding requirements par excellence, while municipal law is for its part a prerequisite to that 'order' which underwrites 'ordered liberty.' In contemporary Cambridge and human society more generally, by much the same token, custom, a decent respect for (not to mention cherishing of) our fellow citizens and their faiths, and, I believe, what many if not most of us still thankfully consider 'divine' and 'natural' law remain as compelling here and now as they were in the Hellenic world of Sophocles's day. At the same time, the irreducibly reverential character of any proper funeral rite, combined with the unspeakable monstrosity of what was done in Boston this past month, certainly can make it seem, on the surface at least, as though permitting proper burial would constitute some falling short of full repudiation of the deed now attributed to the dead.
Ultimately, however, I think the mentioned surface appearance illusory, and this takes me to the second salient similarity that I think we shall find between the cases of Antigone and the Tsarnaev family. In the case of Antigone, it seems clear to me at any rate that the divine and customary law of Thebes must ultimately prevail in the event of conflict with a monarch's arbitrary and vindictive decree. And much the same, I believe, can be said even of many conceivable cases in which even bona fide democratically decided legislation offends certain more 'fundamental' precepts, even if in most of these cases the calls will be tougher. In the case of the Tsarnaev family, by the same token, resolution seems to me similarly straightforward - indeed even moreso. For, unlike the compellingness of civic decree, that of symbolic repudiation is not predicated upon any determinate necessity - at least not determinate in the sense of 'independent of articulated interpretation.' What is more, I think that the interpretations of what we are doing that we both can and ought articulate in connection with doing right by the Tsarnaev family is far more plausible than that which today's refusers of proper rites appear to assume.
What do I mean here? I mean essentially two things, one of them primarily in connection with the previous sentence but one, the other in connection with the previous sentence itself.
So first, in alluding to 'determinacy,' I mean to say that there is no message of approval - no symbolic condoning of bombing - inherent in according our sisters, brothers, and fellow citizens in the Tsarnaev family the space in which to grieve, pray for, and properly bury their kinsman. That is particularly so insofar as we, and in particular the proprietors or administrators of what ever cemetary ultimately proves to be the final resting place, make plain that so doing is the reason for ending the current refusal. The meanings of actions are critically, even if not always solely, what we take, decide, and articulate them to be; and I suggest that respect for and empathy with the Tsarnaev family both is and should be the dominant meaning that will attach to ending the present refusal to let them bury their kinsman. (And lest you find 'empathy' too strong a word here, please view any clip now available on the web of Tamerlan Tsarnaev's uncle's expressions of distress over not being able to find a resting place for his nephew; it is heartbreaking beyond measure.)
Second, I think another meaning is worth noting in connection with the case of Tamerlan Tsarnaev - a meaning that I think at least as much there to be seen and appreciated as to be deliberately attributed: In according the proper funereal respects to Mr. Tsarnaev, I think, we attribute full significance to the deed of which he stands accused, in a way we might not if we simply 'make him disappear.' Not allowing proper burial - leaving him out for the carrion-birds, so to speak - seems to me to suggest a certain deteriorability or dissipatability in connection even with the dead's alleged deed, as if the wrong will dissolve into nothingness with the body. It suggests that there is no meaning borne by this man's body or person, hence that no meaning inheres in his actions.
To continue to hold fast to Tamerlan Tsarnaev's sacred humanity and his soul's persistence, by contrast, in recognizing and embracing his family's sacred right and obligation to do with his body what their (not to mention our) religious laws require, is to accord the permanence and significance of his alleged deed its proper weight. It is to recognize that this deed is still 'out there,' as it were, still weighing on the moral and spiritual economy of our lives. And it is also, it bears noting in passing at this site in particular, to recognize the continuing opportunity of the dead to repent, and the hope that they will, in eternity.
Have a look at our friend John Inazu's insightful new piece, Freedom of the Church (New Revised Standard Version). A methodological theme in John's writing is the importance of excavating the theological assumptions which lie below many of our current legal doctrines and theories, particularly (though not exclusively) in the law and religion context. This piece pursues the Inazian (I would have said Inatian, but that's perhaps too close to Ignatian) theme with respect to Catholic and Protestant ideas about ecclesiastical liberty. Here is the abstract:
Significant discussion about the “freedom of church” has recently emerged at the intersection of law and religion scholarship and political theology. That discussion gained additional traction with the Supreme Court’s ruling in Hosanna-Tabor v. E.E.O.C., which recognized the First Amendment’s “special solicitude” for religious organizations. But the freedom of the church is at its core a theological concept, and its potential integration into our constitutional discourse requires a process of translation. The efficacy of any background political concept as legal doctrine will ultimately stand or fall on something akin to what Frederick Schauer has called “constitutional salience.”
The existing debate over the freedom of the church obscures these insights in two ways. First, its back-and-forth nature suggests that translation succeeds or fails on the level of individual arguments. Second, its current focus on a mostly Catholic argument neglects other theological voices. The kind of cultural views that affect constitutional doctrine are less linear and more textured than the existing debates suggest. This paper adds to the discussion a Protestant account of the freedom of the church: the New Revised Standard Version. Part I briefly sketches the process of translation that any theological concept encounters in the path to constitutional doctrine. Part II summarizes the current debate in legal scholarship about the freedom of the church. Part III introduces the New Revised Standard Version through three prominent twentieth-century theologians: Karl Barth, Dietrich Bonhoeffer, and Stanley Hauerwas. Part IV assesses the possibility of translation, and Part V warns of the theological limits to translating certain theological concepts. The New Revised Standard Version reinforces some of the normative claims underlying the Catholic story, but it does so through a Protestant lens that is somewhat more familiar to American political thought. It also differs from the Catholic account in two important ways: (1) by characterizing the church as a witnessing body rather than as a separate sovereign; and (2) by highlighting the church’s freedom in a post-Christian polity.
I was reminded by this excellent post over at Commonweal by my friend Scott Moringiello that yesterday was the bicentenary of the birth of the great Danish theologian Søren Kierkegaard. I visited Kierkegaard's grave while on a visit to Copenhagen a few months ago--as I joked with a friend, for the purpose of telling Kierkegaard he was right all along. Stepping back from the torrent of words (in law and otherwise) around us, there are a handful of indispensable authors for understanding the human condition, and Kierkegaard is, in my view, one of them. A bit from Kierkegaard's journals:
Christianity has been abolished somewhat as follows. Men have entrenched themselves more and more firmly in the fixed idea that Christianity's meaning should be in a trivial sense to make life easier and easier, the temporal easier and easier, something which again is consistent with the fact that the preaching of Christianity has for a long time been, in a trivial sense, an occupation, so these rascally preachers, for the sake of profit, have administered Christianity just as shopkeepers or journalists—nothing better on the market—and therefore the meaning of Christianity becomes in the trivial sense: to make life easier.
Thereby they have succeeded in completely abolishing Christianity, for Christianity is not some physical externality which remains even though untrue affirmations are made about it; no, Christianity is an inwardness which is transformed by the affirmations.
And since Christianity has been abolished this way, the whole realm of the temporal has also come to be muddled, with the result that it is no longer a question of a revolution once in a while, but underneath everything is a revolution which can explode at any moment.
And this is consistent with the fact that we have abolished Christianity as the regulating weight, as weight, of course, but as regulating weight.
It certainly is true, as I have pointed out somewhere else, that the more meaningless we make life, the easier it is, and therefore that life in one sense has actually become easier, not, as the pastors falsify, by means of Christianity, but by abolishing Christianity. But, on the other hand, this nevertheless has its difficulty; when a man or when a generation must live in and for merely finite ends, life becomes a whirlpool, meaninglessness, and either a despairing arrogance or a despairing disconsolateness.
There must be weight—just as the clock or the clock's works need a heavy weight in order to run properly, and the ship needs ballast.
Christianity would furnish this weight, this regulating weight, by making it every individual's life-meaning that whether he becomes eternally saved is decided for him in this life. Consequently Christianity puts eternity at stake. Into the middle of all these finite goals, which merely confuse when they are supposed to be everything, Christianity introduced weight, and this weight was intended to regulate temporal life, both its good days and its bad days, etc.
And because the weight has vanished—the clock cannot run, the ship steers wildly—and for this reason human life is a whirlpool.
Søren Kierkegaard’s Journals and Papers, ed. and trans. Howard V. Hong and Edna H. Hong, Volume I, pp. 437-38.
