Colombo Telegraph

“The Law,This Violent Thing”: Dissident Memory And Democratic Futures

By Vasuki Nesiah

Dr. Vasuki Nesiah

2013 Neelan Tiruchelvam Memorial Lecture[1]

“The law, this violent thing”[2]

dissident memory and democratic futures

In 1999 I was a graduate student in the United States. That summer I returned to Colombo to work with Neelan at the International Center for Ethnic Studies (ICES). As was the case for many young people who went abroad for their studies but returned to Sri Lankain the summer, for me ICES was a magnet. ICES was our institutional summer home, but it was also much more. Neelan had created a utopic place that provided intellectual community and political camaraderie. Our conversations leapt from Tamil poetry to Swiss federalism, from ethnographies of Baila to the Habermasian public sphere, from caste discrimination to free trade zones. Whether we were engaging with Edward Said or with Kumari Jayawardena, whether we were discussing the political economy of the Mahaweli dam or Sinhala teledrama, constitutional reform or dowry, these debates and their stakes were—often implicitly, sometimes explicitly—calibrated with justice struggles in Sri Lanka. Thus our own intellectual and political maturing was shaped through an investment in Sri Lanka’s future. The ICES thatched patio was the enchanted place from which, in a very personal sense, we knit the political and intellectual bonds and commitments that showed us how to “abide by Sri Lanka” in the sense that Qadri Ismail has invoked.[3] Undoubtedly many of us were less radical than we thought we were; moreover, class and social location insulated us from what the majority of our contemporaries were experiencing in the rest ofSri Lanka. Yet even in that privileged space, Neelan, through his own example, taught us how to conduct our lives in ways that gave and risked everything.

In the summer of 1999 I had returned to Colombo to work as a research assistant to Neelan on a number of projects, principally the courses he would be teaching at Harvard Law School that fall. In a course that dealt with constitutions, civil rights, and justice struggles, Neelan wanted to go beyond the standard law school course material of case law and legal scholarship to include two classic texts—the Tamil epic Silapathikaram and the Greek play Antigone. In my lecture today I use these texts as anchors in exploring the themes of dissent, transitional justice and the politics of pluralism. My primary focus is Antigone, and I rely on Antigonick, the interpretive poem-translation by Anne Carson, a scholar of ancient Greek who Michael Ondaatje describes as “the most exciting poet in English today.”

Let me first remind us quickly of the stories these two texts convey.

Neelan

Silapathikaram is the renowned third-century Tamil epic by the Jain poet Illango Adigal.[4] It tells the story of Kannahi and her beloved Kovalan, who the King of Madurai wrongly accuses of stealing the Queen’s anklet. Kovalan is beheaded for the crime. When Kannahi storms the palace and proves her husband’s innocence, the King is anguished by this miscarriage of justice and is killed by his own regret. Yet Kannahi’s own quest for justice remains unsatisfied by this individual accountability. Protesting the entire system that persecuted her husband, she sets fire to the city. She needs a total rupture with the old to account for the injustices that have transpired.[5] For Neelan, Silapathikaram carried an important message about the relationship between justice and the courage of ordinary citizens. In addition, together with its twin epic, Manimekalai, it carried the spirit of the richly pluralistic traditions of Tamil culture that Neelan wanted to celebrate. Silapathikaram was written by a Jain prince and Manimekalai was authored by a Buddhist poet; they both have strong female protagonists and what some may term a proto-feminist consciousness. In this sense, like Neelan himself, they stand in contradistinction to insular and illiberal expressions of Tamil nationalism.

Antigone, the fifth-century BCE play by the Greek dramatist Sophocles,[6] is also concerned with a woman’s quest for justice—in this case, the justice due to the dead. In the aftermath of the civil war in Thebes, King Creon orders that Antigone’s brother, the dissident Polynices, be left outside the city’s gates unburied and unmourned. For Creon this is a moment to reach forward, not look back; to celebrate war’s victors rather than mourn its victims.[7] In contrast, Antigone wants to bury her brother, as he will not be at rest without getting a burial in accordance with the rituals and traditions of their community. She needs to give the dead his due. Eventually, Antigone buries Polynices, invoking divine law in violating Creon’s edict, or the law of man. Imprisoned for her act of civil disobedience, she commits suicide. Her death is followed by the suicide of the grief-stricken Haimon, Antigone’s fiancé and Creon’s son. The self-inflicted bleeding continues. On hearing of Haimon’s death, his mother, Eurydice, kills herself while cursing Creon for the murderous folly that wrecked their family. “Assassin of your own child,” she condemns her husband as she blinds herself. Thus Creon not only lays waste to the peace dividend that was to attend the end of the civil war inThebes, he opens the door to a chain of events that takes down his own family. At the end he admits his culpability for this bloody path that cracked his family open. “Here is my crime,” he says. “My child too soon dead o(f) this sacrilege that I called public policy. … my child assassinated by my folly.” Faced with the destruction of his family and distraught and wracked by grief, Creon calls for justice against his own deeds and surrenders to the system he presided over. He admits he learned his lesson late; but, as the chorus calls out, “Wisdom—better get some even too late.”

Antigone and the Democratic Paradox

Antigone has had an enduring hold on our imagination of justice. On any given day, the play is being performed somewhere in the world.[8] Its great power is its ability, in Greek fashion, to be a Trojan horse for dissident political sentiment wherever it is performed. In places where communities have been refused a right to mourn their dead, Antigone has been a way to claim that right. In places where states have declared a hierarchy of loss that includes both privileged and dispensable victims, Antigone has been a way to claim a radical equality in death. In places where some lives have been declared ungrievable, Antigone has been a way to express that grief. In places where the aftermath of a civil war has been used to consolidate a ruler’s power, Antigone has been a way to contest the legitimacy of that authority. In places where a war’s victors have claimed an Orwellian right to declare an official truth and underwrite a new technology of control, Antigone has been a way to resist and revolt. In places where minority traditions have been thrown outside the city’s gates and condemned as a threat to the nation, Antigone has been a way to open those gates and reclaim the city. In places where dissent remains hesitant and underground, a whispered current, Antigone becomes a way to articulate protest.

One classic interpretation of the drama unfolded on Sophocles’ stage is that of the struggle between the rule of the sovereign and alternative sources of authority. Hegel described Antigone as “the most sublime and in every respect most excellent works of art of all time.”[9] Hegel saw the play as staging the epic tension between public and private morality; the debate between Creon and Antigone was the dialectic between the authority of the state and the call of conscience.[10] Creon argues for a monopoly on determining what constitutes justice; indeed, he equates the law of the state with justice. Antigone represents the competing imperative—the call of morality. The tragic end of both Creon and Antigone represent the need for balance, for a synthesis of both state authority and moral conscience to represent a Hegelian equilibrium. For Judith Butler, Antigone is about the right to grieve. It is a dissident voice contesting the state’s claim that some lives are less worthy than others. Thrusting against the force of law, Antigone’s insistence on grieving Polynices is about challenging hegemonic authority, championing the minority voice, and contesting that which is politically dominant. It is also critically about questioning and undoing the public/private distinction.[11] Butler’s analysis underscores that how we define “family” and “family values,” how we allocate gender roles, and how we draw the line between licit and illicit sex are all deeply political matters. In fact, how the public/private distinction gets invoked may well yield insight into what is rendered “otherwise” to our normative common sense and hegemonic institutional arrangements.[12] For Slavoj Zizek, Antigone signifies dissent—an insurgent “no” to the powers that be. He says that “every rebellious movement has to begin with such incessant insistence” that he sees represented in Antigone.[13] For Bonnie Honig, Antigone is pitting tradition against democracy, Homeric custom against a populist state authority.[14] The struggle over lamentation and mourning is the stage for a battle over larger political stakes about which traditions gain recognition in the post-war polity.

All these articulations of what is at stake in Antigone provide some insight. While I am unfaithful to all these interpretations, they also inform my own recasting of the debate between Creon and Antigone as the staging of a debate about democracy—in particular, the tension between the notion of democracy as a “form of government” and “democracy as a form of social and political life.” Political theorist Jacques Rancière describes this tension as “the democratic paradox.” [15] This is what we saw in Cairo and Alexandria as people protest the democratically elected President Morsi in Egypt. This explains what we saw in Turkey when people poured out onto the streets of Istanbul and Ankara to protest the authoritarian ethos of a thrice democratically elected President Erdogen. From Turkey to India, protests have sometimes been catalyzed by the push to take back public space (land and other resources) that have been lost to unholy deals between democratic governments and private developers. These protests reclaiming public space have often been the first step toward a wider effort to reclaim democratic space from democratic governments. Thus the protests themselves are often catalyzed by the fact that democratic governments have been the conduits of neoliberal economic policies and the radical inequalities they have spawnedThis is even part of the story in Brazil when people flooded the streets of Sao Paolo and Rio to protest the priorities of a “left wing” government that had made its peace with what some describe as a ”market orientation.”[16] As with Turkey, it is significant that these people were protesting governments that came to power through the ballot, not the bullet—“ballotocracy,” as Khaled Fahmy and other Egyptians have termed it.[17] Speaking to the first year of democratic government in Egypt, Fahmy notes that the Muslim Brotherhood and Morsi “thought that running and winning free and fair elections was what the revolution was all about. (But) people did not take to the streets in Jan-Feb 2011 and risk their lives only to have free and fair elections.”[18] In fact, the vision of democracy that Tahrir Square represented was much more vibrant and unrelenting—a vision that the government quickly diagnosed as a threat. Thus after coming to power democratically, Morsi then proceeded to suppress democratic action through an array of assaults against the press, NGOs, and the judiciary. The democratic challenge that Tahrir Square represents was at the heart of Antigone’s act of civil disobedience against the law of the land, it has been at the heart of the “Right to the City” movements that have gained traction from Cape Town to Bombay, it was at the heart of the anti-austerity protests that rolled through Athens and Madrid in the wake of the financial crisis, it was at the heart of Occupy Wall Street from New York to London, and indeed, it remains at the heart of dissent and disquiet in all those other places where “ballotocracy” rules. This is not to conflate democratic governments and totalitarian ones, but to contest the idea that we delegate politics to elections or justice to courts.[19] As Mustafa Dikec, a Turkish scholar supportive of the protests in Istanbul, notes, “By standing up against a democratically elected government, the protestors remind us that politics is the business of anyone and no-one in particular, with no privileged subject, specific time or pre-determined space.”[20] The permanent insurgency that such a protest denotes gives rise to democratic governments’ deep hostility to “democracy as a form of social and political life.” Indeed, as Rancière notes, the supposed defenders of democracy are increasingly defenders of “pastoral government” presenting themselves as saving democracy from the disruption of rebellion; paternalistically safeguarding “public authority” and “political community” from the anarchy of those “occupying the streets.”[21] In turn, those of us invested in a democratic ethos recognize that the rules, procedures, and institutions of democracy as a form of government are not loyal allies of that ethos. Indeed, as Neelan’s friend, the legal scholar Roberto Unger has argued, a commitment to a democratic ethos requires that all institutions carry within their DNA the possibility of their revision rather than their inevitable reproduction.[22] On this view, our aim when engaging with democratic government should not be stability but changeability; not closure but openness. Invariably, a commitment to pushing against entrenched privilege and distributive injustice would call for the ability to think against the system and push against the conditions that reproduce it. To somewhat irreverently paraphrase Amartya Sen, we are arguing here for a link between freedom and un-development; between freedom and the ability to undo the very systems that entrench maldistribution.[23] As Unger has noted, this is the same idea that English poet John Keats has celebrated as “negative capability”[24]—where the conditions of a vibrant and productively defiant democratic life is precisely that ability to live with resistance and upheaval; a challenge to the inherited structures of political engagement, even when they come in the form of democratic government.

Against this backdrop, and looking through the prism of the democratic paradox outlined here, the rest of my talk will draw from the arc of the Antigone-Creon story in thinking about the post-war social contract—from dissident memory to democratic futures, about how we mourn the dead and live with our differences.   These are deeply inter-related dimensions of how we move forward in the aftermath of war.

Dissident Memory

Antigone opens up pivotal questions about the politics of memory.  Creon’s prohibition on the burial of the rebel Polynices presents any act honoring Polynices as itself subversive of the Theban state.[25] Antigone insists on burying her brother with all the Homeric rites and rituals that her community accords the dead[26] Hegel famously celebrated her actions as an act of sisterly love that was outside of and opposed to the public law of the land. For him this represented the call of hearth and home—of familial devotion. Thus he situated her act of rebellion as an act of personal moral conscience that competed with the logic of politics and the imperatives of the state. Yet I want to resist this reduction of Antigone’s act to one of personal loss and the call of individual conscience. Undoubtedly the deaths of war have private meaning and involve losses that escape the imagination of the political. But this is not their only significance. Even today, when we are gathered here to celebrate the life and mourn the death of Neelan, it is not only because of those connections of family and friendship to an individual. Rather, it is because his life and death meant something in the public sphere. The LTTE’s killing of Neelan was a political act, and our remembering him is also a political act.

This is the story of many and all those who were killed over the past three decades inSri Lanka. Unimaginable personal loss has been suffered, but each attack against an individual life has also had a larger-than-a-single-life significance. After Richard De Zoysa was disappeared, Arjuna Parakrama wrote a poem-letter to Richard that can be read as also a letter to Neelan, Rajini, Kathesh, Lasantha, and, as he says, “the thousands less famous that have disappeared before.”

Their killers were not aiming to inflict an individualized pain or a personal loss. Rather, as Parakrama says, the target of the killers was:

…life, your larger-than-life life, a thousand 
Lives, LIFE: they chose yours to mutilate as a warning to the rest,
And that must be the strangest of compliments;
They are sick, desperate, berserk with self-righteous hate,
But they cannot afford to mistake their enemies for their friends.

Their killings were about defining the very terms of citizenship and belonging. In this vein, Creon’s edict against mourning Polynices is about distinguishing enemies from friends and allies from traitors in post-war Thebes—traitors, who, as Sharika Thiranagama has written about so eloquently, have been classified by Prabhakaran, among others, as “more dishonorable than enemies.”[27] In Thebes too, brothers from the same land were marked apart as “traitor” and “patriot,” “the one a criminal, the other a defender of our land.”[28] Creon’s wife, Eurydice, explicates how this logic defines Creon’s expulsion of Antigone: “We expelled her. We had to. Using the logic of friend and foe that she denies. But how can she deny the rule to which she is an exception.”[29]

“The rule to which she is an exception”—the rule of Creon. In this light the mourning of the dead dissident Polynices is an act of protest that goes beyond that of individual rebellion.[30] When Creon accuses Antigone of being the only one who protests his rule, she responds “Actually no.  They all think like me but you have nailed their tongues to the floor.” Creon prohibits public rites of mourning for Polynices; Antigone challenges him not through her private grief but by performing a public burial ritual. In doing so she carves a space outside of Creon’s rule; she occupies a space of exception that refuses, as a rule, the distinction between friend and foe; the discursive economies of patriot and traitor, or majorities and minorities, of lives that belong and those that do not. In taking exception to those distinctions, Antigone redefines the terms of citizenship and belonging beyond those dictated by Creon’s law. Eurydice says, “A state of exception marks the limit of the law—this violent thing, this fragile thing.” The state of exception here is not the state of exception that the law arrogates to itself through the Prevention of Terrorism Act and declarations of emergency; rather, this is the state of exception that citizens assert through civil disobedience by taking exception to the violence of the law and protesting its legitimacy to mark law’s limits.

The Work of Counter-Monuments

We are gathered here today as part of a living memorial to Neelan.[31]  I want to now look at how we may think of grief and memorialization as part of the practice of democracy as a form of social and political life. In grieving for the lives lost in the war, we do not fade from the struggles of the present but re-channel that grief into struggles worthy of those lost lives. It is not a passive or therapeutic grief about past tragedies, but an active, discordant challenge to present crisis. It is a reminder that things could be otherwise; a reminder, in Unger’s words, of the “false necessity” of the current order.[32] Resituating Antigone’s act of mourning in the democratic paradox it becomes not an attempt to bring closure on the past, but an effort to open up the space for contestation in the present; not to raise gravestones in the names of those who died in the civil war, but to engage with the central political challenges that we confront today.

There are contemporary analogs to the project of dissident memory that I associate with Antigone.  Prof. James Young, a scholar of holocaust studies, has described the proliferation of memorials to victims of the German state over the last decades; the landscape from Berlinto Hamburgto Munichis ever expanding with new memorials against fascism.[33] As Young observes, even more interesting than the memorials themselves are that these memorials and places for such monuments trigger debates again and again about how to remember, what to remember, who to honor, who to condemn. There are even debates about whether the obsession with honoring the dead is in fact an evasion of memory—accusations that this is a national ritual of hand wringing that expels guilt and makes room for a self-congratulatory moralism. Young describes the memorials that have provoked this ongoing, agonized debates as “counter-memorials”; the work of critically self-reflective memorial artists, like Norbert Radermarcher or Jochen and Esther Gerz.”[34] These conceptual artists construct dissident memorials that invite observers to engage and shape the work so that the artists themselves lose control over the public meanings that attach to the memorials they design.

Most state-sponsored memorials are self-aggrandizing celebrations to choreograph collective memory and control their public expression. In Sri Lanka, we became familiar with these kinds of memorials through the ‘heroes’ day’ commemorations that the LTTE used to convene every November or the victory celebrations that the Government convenes in May.  Even as we mourn those we lost in the three decades of war, we fight against an effort by nationalists of all stripes to appropriate that grief to redeem their causes. The “counter-memorials” that Young describes function to disrupt efforts to wrap a flag around grief; they push against closure and nationalist redemption. He describes a series of installations that are made of materials that are intended to change, erode, fade, and even disappear over time; they are characterized by an impermanence that stands in contrast to the fixity of the traditional monument. These works invite interaction by calling on passersby to write on them, trip on them, and engage with them, in contrast with traditional monuments that dictate how we should remember and stand above ongoing sociopolitical engagement. As Young describes it, the task is not just to console but also to challenge, not to redeem but to revolt. The memorial artists he describes are not interested “in a facile kind of Wiedergutmachung that purports to mend the memory of a murdered people. Instead of searing memory into public consciousness, they fear conventional memorials seal memory off from awareness altogether.” In contrast, the counter-monument artists aim for the art of memory to “jar viewers from complacency and to challenge and denaturalize the viewers’ assumptions.”

The annual road-painting effort at the Kynsey Road-Kynsey Terrace junction that commemorates Neelan’s life can be situated in the counter-monument tradition that Young celebrates.[35] Here too ordinary people reclaim public space in ways that are ephemeral but powerful; it functions as a witness to atrocity that invites all to participate but challenges us not to just pass by. There is also a resonance with the mothers of the Plaza de Mayo in Argentina, who famously marched every Thursday for decades in a Buenos Aires town square to mourn their disappeared sons and daughters. They refused overtures from the government that brought the rhetoric of reconciliation without justice, or the inducements of reparations without accountability. They were not interested in memory that brings moral closure and political acquiescence but memory that effects deeper social change. The comfort women of South East Asia who protested their sexual exploitation by the Japanese military similarly rejected reparations without genuine accountability as blood money. Disruptive and dissident, these women’s grief was a challenge to the state.  Like the road paintings at sites of death in Sri Lanka, the memorial artists in Germany, the mothers of the disappeared in Argentina, the comfort women’s engagement with the legacies of the war echo Antigone’s insistence on a counter-hegemonic grief that challenges Creon’s efforts to channel the war’s aftermath to cement nationalist self-aggrandizement.

Transitional Justice and the Post-War Social Contract

Internationally, over the past two decades, echoes of Antigone have also been heard in courtrooms and truth commissions around the world. Transitional justice, the branch of human rights that has evolved in engagement with memory of the crimes and losses of war, has emerged as the most prominent member of the human rights family during this time. Transitional justice is that subfield of human rights focused on redress of past mass atrocities in contexts of political transition through a family of mechanisms that include trials, truth commissions, reparations programs, and memorials. While the Nuremburg trials or the testimonial traditions of Latin America may be part of this tradition, the field gained particular momentum in the early 1990s when, within a five-year period, major truth commissions were established in Chile, El Salvador, Guatemala, and South Africa,[36] and two ambitious international tribunals were launched to address war crimes in the former Yugoslavia and the genocide in Rwanda.[37] The UN developed guidelines on reparations for victims, states sponsored memorials, and the human rights community pushed for the passage of the Rome Statute and the establishment of the International Criminal Court (ICC). Convened in the mid-1990s, the important work of the disappearances commissions led by Manouri Muttetuwegama in the aftermath of the UNP-JVP conflict in the South can be situated within this trajectory as well.

Transitional justice remains a field shaped by complex political fault lines. In some cases, initiatives advanced in the name of transitional justice have become stages for victor’s justice. The trial of Saddam Hussein, which was coordinated by an occupying U.S.army, provides a hyperbolic example. Indeed, from Darfur to Tripoli, the field of transitional justice and the actions of the ICC have sometimes gained prominence and support through complicity with the interests of empire. In some contexts, transitional justice mechanisms have focused on narrowly defined justiciable crimes like disappearances and elided systemic socioeconomic injustices. For example, the 1990 Chilean truth commission focused on deaths and disappearances while ignoring human rights violations that resulted from Pinochet’s neoliberal economic policies.[38] Too often transitional justice has relegated the work of memory “to law and judicial proceedings.”[39] The courtroom can advance justice, but it can also delimit justice if it has a monopoly on our political vocabularies of justice and if it dominates the paths of justice struggles.

Yet, for all these shortcomings and potential pitfalls, in many other places transitional justice initiatives have advanced accountability and opened up a national conversation on the enabling conditions of human rights abuse. They have also played a critically important role in empowering social movements and nudging open the door to justice struggles gaining audibility on a national and even international stage. The work of the Citizens Commission documenting the crimes of the LTTE and their forced expulsion of the Muslim community from the Northern Province offers one such example close to home.[40]

In many countries around the world, when peace agreements were signed and armaments were put away, communities have sought to knit together new social contracts for their collective post-war future. In South Africa and Timor-Leste, such initiatives have included drafting new constitutions and establishing transitional justice mechanisms to advance a historically focused engagement with a nation’s human rights record. Yet the terms of such a social contract cannot emerge from a universal blueprint; after all, the conflict itself emerged because there were deeply contested visions of the nation even within the nation. Indeed, even in cases where there was a clear military victory by one side, these contested visions shaped the terms through which the new social contract had to be negotiated. In Peru, for example, the government defeated the Shining Path and captured its leaders, Abimael Guzman and Oscar Ramirez, in 1992 and 1999, respectively. Nevertheless, despite this military victory, when negotiating the terms for the truth commission, establishing prosecutorial policy to hold those responsible for human rights crimes responsible, or detailing criteria for reparations, civil society sought to ensure that these initiatives were not celebrations of victor’s justice. They pushed for abusive military and political leaders in the government to be held responsible. Today former head of state Alberto Fujimori, who oversaw the military victory over the Shining Path, finds himself in jail, as he was convicted in 2008 for killings, bodily harm, and kidnappings undertaken during the course of the civil war. The truth commission heard from victims of state and non-state military actors. The commission investigated the enabling conditions of violence and highlighted the radical economic inequalities, the discriminatory practices against marginalized communities, and the militarization and centralization of the state apparatus. The work of public memory was directed at grounding discussion of the post–civil war social contract in the struggles over resources and meanings that enabled and exacerbated conflict in the first place. Eschewing redemptive nationalism and a facile reconciliation that was insulated from those difficult questions, the process of engaging with social inequality and discussions about the causes of war may have heightened discontent and provoked oppositional energies. This may have complicated, if not made impossible, the task of managing differences and facilitating trouble-free governance, but these are the risks and rewards of democratic engagement in renegotiating the social contract; this ongoing, unfinished task is politics.

We are all familiar with efforts to stay dissent in the name of governance. From Washington to Colombo, Cairoto Istanbul, Brusselsto Athens, we have heard echoes of calls for order with an interest in facilitating governance. This is, after all, what Creon says to Antigone—the war is over and let’s now turn to governance; this is no longer a time for politics but a time for stability; this is not a moment for fracture but for unity.  His army was victorious over the rebel group headed by Polynices, and Creon thought he had the prerogative to establish the terms of the post-war settlement. The edict ran, “Now victory is ours, let there be forgetting.”[41] Against that edict, mourning functions as an ongoing counter-narrative to the way things are; it defies the finality of death and of what that killing was intended to signify. Antigone raises a flag for dissensus— “a refusal to close down the space of the political in the name of good governance.”[42] She calls on her act honoring the dead as one ordained by divine law, but she is not claiming that mourning is sacred. Rather, the act of mourning is a window into all that is at stake in forgetting. The play’s tragic trajectory, enveloping both Antigone and Creon, is an indictment of Creon’s hubris and a lament for the wisdom and generosity that could have taken post-war Thebes along a happier trajectory. Creon the sovereign had the authority to pass laws determining who was traitor and who was ally, whose life was worthy of mourning and whose wasn’t. Yet law also has its limit. As Eurydice says as she lies dying, “bleeding from all orifices,” the state of post-war tragedy is “the state of exception” that marks the limits of the law of the land, the “limit of the law this violent thing, this fragile thing.”[43]

Grappling with Pluralism: Towards Democratic Futures

My discussion so far has focused on how post-war memory of past wrongs engages with the law of the land in the present.  Continuing to attend to the democratic paradox, I turn now to how we remake our future.  Law’s limits emerge not only in its inability to carry a monopoly on the politics of memory, but also in its monopoly on civic trust in the communities that we construct in the aftermath of war. As Antigone evolves to its tragic conclusion, it is the setting not only for the clash between two strong individuals, but also between two competing sources of public authority. Creon’s statist, monological reason jostles against the need to have a plurality of voices and traditions in the public sphere. Antigone is not necessarily dismissing the law of the land, but she situates it alongside other sources of authority that may well trump the claims of the state. She suggests that it is “unholy” not to be “unlawful” in the legal regime she occupies. Antigone raises crucial questions not only about the justice we owe to yesterday’s victims, but also about the sources of justice outside of the rule of law.

Neelan’s interest in Antigone was not unrelated to his interest in legal pluralism, the subject of his thesis at Harvard. From Thesavalamai to Roman-Dutch law, Kandyan law to international human rights law, Sharia to the British common law, Neelan had a commitment to respecting and engaging the multiple sources of authority and influence that enrich and complicate our collective lives. The clash between Creon and Antigone represents competing legal orders from a number of optics—the Attic and Homeric traditions of ancient Greece, legal positivism and natural law, civil law on the one and the laws of custom on the other, the norms of the public sphere and norms of the private sphere, a patriarchal social order and a matriarchal order. The tragedy of Creon and Antigone is also the tragedy of not coming to terms with the radical diversity of legal traditions through which we think about justice. Neelan’s own commitment to a radical pluralism of legal orders informed his appreciation of Antigone, and productively challenged, enriched, and complicated his own commitment to liberal legalism.

For Antigone, the stakes are not only about remembering Polynices but also keeping alive multiple traditions in the public sphere. When she speaks of alternative funerary rites and burial rituals, she is identifying the many traditions of public legitimacy and many communities that shape citizenship. She resists Creon’s efforts to determine what is a legitimate and illegitimate tradition; his effort to exclude alternative ties of faith and tradition in the name of the nation or in the name of public policy. There is a resonance with contemporary debates that have been taking place in Sri Lanka about the identity of a nation—about which traditions belong and which ones don’t. From halal certification to whether we eat beef; from whether we wear a headscarf to whether we wear a pottu. These are all alternative ways for individuals and communities to be present in public space; to claim the rights of citizenship and pluralize our collective futures. When Antigone argues for honor based funerary rights or Homeric traditions of community membership, she is arguing that these have a legitimate space in Thebes.[44]

However, it does not mean that Antigone becomes the sole spokesperson for what that tradition demands. From UTHR’s challenge to the LTTE’s claims to represent the Tamil community to Ashraff’s challenge to the Southern political leadership of the Muslim community, Sri Lanka’s minorities have a long tradition of internal contestation of claims to sole representation of their traditions, parties, and communities. In Thebes, Antigone’s sister, Ismene, takes up this charge. She rejects Antigone’s call and is willing to leave behind specific traditions and embrace a model of belonging that is more easily assimilated into Creon’s vision for the future of Thebes. Ismene’s position reminds us that cultures and traditions are not hermetically sealed. In advancing a singular, univocal interpretation of what tradition requires, Antigone flirts with the danger of speaking for pluralism while essentializing that which is always already pluralized; in this Antigone carries echoes of Creon. Univocal representations of culture and tradition express technologies of knowledge and power that can generate the very oppressive dynamics they aim to contest. Ismene, in contrast, speaks to the different ways in which we can both belong to traditions and be alienated from them. She strains against the choice between “obedience and dissidence” in shaping a politics of agonistic pluralism, in contradistinction to both Creon’s state and Antigone’s dissident space.[45]

Creon’s son, Haimon, engages the question differently. He calls for a model of tolerance toward multiple traditions and asks Creon to permit Antigone her mourning practices. Antigone herself is not asking for the second-class citizenship of being tolerated[46]—she refuses to shut down the political in the name of good governance. She wants to assert a legitimate space for her tradition in defining the future of the nation. Creon fears that this multiplicity will bring fracture; that the post-war nation is best controlled if led by a “majoritarian” ethos.[47] Yet as Eurydice laments, and as echoed by the crowds in Tahrir Square and Gezi Park, it was precisely the effort to legislate majoritarian control that brought fracture; Creon’s law became the violent thing that rendered everything fragile. Recently Qadri Ismail theorized the ways in which family, discipline, and nation have interpolated citizenship and belonging in Sri Lanka to entrench distinctions of majority and minority, major and minor, those who belong and those who don’t.[48] Central to the process he describes is majoritarian democracy. While majoritarianism may accord with a particular notion of a democratic form of government, here too we see it inhabiting a technology of governance that itself can be deeply incompatible with democracy as a form of life. The rule of law is foregrounded not as a politically neutral foundation of post-warThebes, but as invested in recognizing particular traditions and in excluding others. It is not a framework for a post-war peace that is a shield against the return of conflict; rather, it carries continuities with the war. Again, in Eurydice’s words, the law is not the other of violence; “it is that most violent thing.”

Conclusion: The Measure of Man

Let me now conclude. In my discussion of Antigone today, I have tried to surface themes that are particularly relevant to many of the issues that have been central to public debate in Sri Lanka. In some cases, I have made these connections explicit, but more often than not I have left them implicit.  In her reinterpretation of Antigone, Anne Carson emphasizes the question of time. Antigone foregrounds the question of how we honor the dead in ways that are relevant for the present. Re-remembering the spirit of the people we lost as being with us today is the work of dissident memory. It is an intervention that takes the passage of time not as pointing back to the burdens of the past, but as being directed to the challenge of imagining and working toward alternative futures. As Walter Benjamin observed, “our debt to the dead cannot be settled cheaply.”[49] This recognition was central to how Peruvian civil society resisted a post-war settlement based on victor’s justice.  They recognized the link between dissident memory and democratic futures.

Antigone urges that, “We have only a little time to please the living. But all eternity to love the dead.”[50] This eternal call of dissident-memory is how we honor the dead in ways that speak to the measure of their lives, which, in the words of Martin Luther King, Jr., is not about how they stood “in moments of comfort and convenience.” Rather, the “ultimate measure of man” was where they stood “at times of challenge and controversy.”

How we stand in such times is a measure of how we honor them.

Neelan’s insight that students of law and justice should begin with Antigone remains pertinent today—an insight echoed by Carson’s Greek chorus:

How is a Greek chorus like a lawyer?

They’re both in the business of searching for a precedent

Finding an analogy

Locating a prior example

So as to be able to say

 

This terrible thing we’re witnessing now is

Not unique; you know it happened before

Or something like it.

We’re not at a loss how to think about it

We’re not without guidance….

Neelan was gifted with this hybrid, multidisciplinary view of legal and cultural tradition—it reflected his dazzling intellectual brilliance in making connections across different universes of thought. It also reflected his wisdom in knowing that we cannot turn to law and prosecutions alone in dealing with the terrible things we have witnessed. We need to mine the stories about law and justice that go beyond the imagination of the courtroom; indeed, constitutions and legislation are themselves enriched by extra-legal struggles for justice, be they in the arena of civil disobedience in the present or in the pages of epic texts of the past.

I mentioned at the beginning of my talk that the other great piece of classical literature that Neelan was going to assign his Harvard law students was Silapathikaram. I have not spent much time on Silapathikaram, but I want to close by meditating on the guidance it offers. Kannahi storms the court of Madurai with a lament about justice and the responsibility for citizens to have the courage to speak out against injustices of even the most powerful rulers. “Is there no woman here? … Is there no man in this land?” she asks. “Is there no honest man, or only the sort of man who nourishes and protects the sons of his own blood? …Is there no god in this country? Is there no god in this country where the sword of the king is used for the murder of innocent strangers?”[51] Kannahi is not only critical of the system that condemned her husband, she is also critical of the bystanders and enablers in that system. Today we sometimes associate Kannahi’s burning of the city of Madurai with nihilistic destruction. Yet the power of this epic, and part of what Neelan took from Silapathikaram in thinking about constitutional law was the story about the fallibility of leaders and the power of ordinary citizens to bring down a corrupt system. Kannahi was not content to mourn Kovalan. Rather than individualize the loss and privatize her grief, she wanted to challenge and change the system that produced the miscarriage of justice.

This is how we honor counter-memory when great trees fall, when great souls die.

I have spent a great deal of time with lawyers and poets in the course of this talk. I want to end by reading from yet another poet in honor of a lawyer.

When Great Trees Fall
By Maya Angelou
 
When great trees fall,
rocks on distant hills shudder,
lions hunker down
in tall grasses,
and even elephants
lumber after safety.

When great trees fall
in forests,
small things recoil into silence,
their senses
eroded beyond fear.

…..

And when great souls die,
after a period, peace blooms,
slowly and always
irregularly.


Our senses, restored, never
to be the same, whisper to us.
They existed. They existed.
We can be. Be, and be
better. For they existed.



[1] My thanks to Sithie, Mithran, and Nirgunan Tiruchelvam for the honor of this lecture. I am humbled to stand here today and grateful for the opportunity to celebrate Neelan’s life and legacy. I also want to express my appreciation to Ambika Satkunanathan and Jackie Netto-Lyman for all their support in preparation for this lecture. Ramani Muttetuwegama, Daphne Seevaratnam, Anita Nesiah, Arjini Nawal and Sanjeevi Nuhumal have also helped in numerous ways. Last but not least, my thanks to all those who read and commented on the first draft of this lecture: Prof. Laura Slatkin, Prof. Ali Mirepassi, S. Kasynathan, Devanesan Nesiah, and S. Nanthikesan.   Its limitations are mine alone.

[2] I take the title of this lecture from the dying monologue of Eurydice, wife of Creon in Anne Carson’s Antigonick (New Directions, 2012). I take the reference as not just being to the rule of law in the abstract, but as a more contextually specific reference to the particular law of the land.  In this quote, as in other Antigonick citations in my lecture, I take interpretive license in inserting punctuation to facilitate my own reading of the text.   When referring to Antigone the play, I italicize the word but when referring to Antigone the character in the play I leave it as plain text.

[3] Qadri Ismail, Abiding by Sri Lanka: On Peace, Place and Postcoloniality (University ofMinnesota Press, 2005).

[4] There is some debate about dating Silapathikaram with scholars placing it anywhere between the 1st and 7th century.

[5] Nanthikesan pointed to how Kannahi was driven by a will to “clean up the system that allowed this injustice – she does not restrict herself to the institutions of the court.  She instructs Agni, the god of fire to spare only the innocent and the weak.” As Ali Mirapassi notes, the Kannahi story does surface an unresolved tension about the role of violence in addressing such a challenge: “Can we really create a new beginning by destroying ‘everything’?”  (Email to author, 6 July 2013).  Indeed, “destroying everything” is not only impossible, it also suggests the danger of conflating violence and resistance.  Arguably, this stance was at the heart of the brutal politics of both the Shining Path and the LTTE.

[6] Sophocles authored the most popular living version of the Antigone story, but both earlier and later versions were dramatized by other writers, including Euripides. There is some speculation that the Illango-authored version of Silapathikaram also may have drawn from pre-existing folk tales.

[7] Significantly, this is particularly true of dissident victims. Antigone’s other brother, Eteocles, was also killed in the war, but he was a loyalist and Creon buries him with all the honors due a fallen hero.

[8] Antigone’s contemporary popularity is matched by its popularity in its own day, winning Athenian drama competitions and giving its author wide acclaim.  As Slatkin notes, “such was Antigone’s popular success that on the strength of it Sophocles was elected the next year to an extremely important public office.” Comments at Gallatin Convocation (29 Aug. 2012).  Moreover, as she notes Antigone is not only “ being performed somewhere in the world every day of the year” it has also “been reworked by contemporary playwrights” from South Africa (“Athol Fugard’s The Island”), to Vichy France (Jean Anoughilh’s Antigone) to the Balkans (Jagos Markovic’s Antigone in Belgrade). In Sri Lanka too, there has been at least one such reworking – the play Irangani by Ernest McIntyre, written in 2009, and performed in Australia and Sri Lanka over the last two years.  At the point of writing this lecture, I have not yet had the pleasure of watching a performance of Irangani or of reading the script but learned of it through Radhieka Peeris’s “A Sri Lankan Antigone”, Ceylon Today, http://www.ceylontoday.lk/35-13348-news-detail-a-sri-lankan-antigone.html.

[9] G.W.F. Hegel, Lectures on Aesthetics (Clarendon, 1975). Quoted by Patricia Jagentowicz Mills in “Hegel’s Antigone” in Feminist Interpretations of G.W.F. Hegel (PA State U. Press (1996) at 59.

[10] G.W.F. Hegel, Introduction to the Philosophy of History with an appendix from Philosophy of Right (Hackett, 1988). For him, “the proper goal of the state” was to provide the possibility for a synthesis of divine and human law—for making the former “count” such that the logic of the ethical is what is rational for the state. Ibid. at 41.

[11] Interestingly, as Slatkin notes, “family and the state are far more intricately woven in Greek tragedy than in modern liberalism, which tends to privatize the family, as if it were not a matter of state.” Laura Slatkin, Comments at Gallatin Convocation (29 Aug. 2012).  See also, a range of feminist interventions on Antigone, including the gendered dimensions of mourning in Fanny Söderbäck, Feminist Readings of Antigone, SUNY (2010).

[12] I take the term “otherwise” from Beth Povinelli, who has been interested in how late liberalism produces marginalization. For example, see “Shapes of Freedom,” Kim DiFruscia’s Interview with Beth Povinelli in Alterities, Vol. 7, No. 1, http://www.alterites.ca/vol7no1/pdf/71_TurcotDiFruscia_Povinelli_2010.pdf, and Povinelli, The Cunning of Recognition (Duke University Press, 2002).

[13] Slavoj Zizek, “Meditation on Michelangelo’s Christ on the Cross,” SPECS journal of art and culture, Vol. 1, Art. 42 (2008), at 25.

[14] Honig describes it as a battle between fifth-century Homeric mourning practices and democratic mourning practices, but she uses the term democracy not to indicate democratic values such as the space for dissent but norms of governance associated with democratic government such as the rule of law. Thus, “Creon on this reading represents not sovereignty run amok, or not just that, but more pointedly the fifth-century democratic polis that appropriated funerary practice for polis needs.” In this sense, there is a resonance with this paper’s preoccupation with the tension between the notion of democratic government and the notion democracy as a form of political engagement. To clarify our usage, we may also translate what Honig refers to as “democratic” into majoritarian or populist authority to better capture the grounds of Creon’s authority. Honig, “Antigone’s Lament, Creon’s Grief: Mourning, Membership, and the Politics of Exception,” Political Theory, Vol. 37, No. 1 (Feb. 2009), at 6.

[15] Rancière, “Does Democracy Mean Something?” Dissensus (Bloomsbury 2010), at 47.

[16] Gianpaolo Baiocchi and Ana Claudia Teixeira, “Pardon the Inconvenience, We Are Changing the Country,” Boston Review (26 June 2013), http://bostonreview.net/blog/pardon-inconvenience-we-are-changing-country.

[17] Fahmy credits Amr Ezzat with founding the term. See Fahmy, The seven deadly sins of the Muslim Brotherhood (1 July 2013). The problem itself is a result of the thin notion of democracy that was flat packed and exported as part of the “democracy promotion” package that took on different permutations in the Cold War era, and the post–Cold War Washington consensus era, but is centered on a core formula of elections, markets, and rule of law. For a more extended analysis of how this informed the U.S. government’s democracy work, see Nicolas Guilhot, The Democracy Makers: Human Rights and the Politics of Global Order (2005).

[18] “When Morsi won with a 52% of the vote, his group convinced him that this is a sufficient source of legitimacy and that the revolution, now that it has fulfilled its main objective, is over. People should now go back home and mind their business. This was a disastrous reading of the political situation.” Fahmy, supra note 17.

[19] I am paraphrasing Zina Miller’s challenge to courts as the bastion for anti-impunity. I should add that part of what we intend by underscoring that we cannot conflate democratic governments and totalitarian ones is also to resist relying on the military as a power broker between the government and the people, as has sometimes happened in the Philippines, Turkey, and Egypt. The military sometimes presents itself as a disinterested bystander, ensuring that corrupt politicians stay in line; yet the military is no friend of democratic action either.

[20] Mustafa Dikec, “Fraudulent Democracy and Urban Stasis,” Society and Space Environmental planning D, http://societyandspace.com/2013/06/14/commentary-by-mustafa-dikec-fraudulent-democracy-and-urban-stasis-in-turkey/.

[21] Rancière, “Criminal Democracy,” Chronicles of Consensual Times (2010), at 122–123. He notes that this defense of pastoral government is accompanied by a criminalization of democracy as continuous with totalitarianism.

[22] Roberto Unger, False Necessity: Anti-Necessitarian Social Theory in the Service of Radical Democracy, Revised Edition.London: Verso (2009).

[23] Amartya Sen, Development as Freedom,Oxford (1999)

[24] Supra note 22, at 279-280.

[25] As Mala de Alwis notes following Judith Butler, “grief is a tie that binds,” including the ties and political alliances potentially subversive of the state. She notes that disappearances serve the function of “censoring memory” and thereby “deferring loss and what might be its political outcome.” De Alwis, “Disappearance and Displacement in Sri Lanka,” Journal of Refugee Studies, Vol. 22, No. 3 (2009), at 385, 378.

[26] As my classicist colleague Laura Slatkin clarified, the central issue is whether Polynices is buried with a formal lament. At minimum it suffices that he be buried with a sprinkling of dust, but the critically contentious issue here is the public formalities, including the ritualized public grieving, that attend that burial. Email to author (2 July 2013).

[27] Thiranagama quotes Prabakaharan in his heroes’ day speech; see “In Praise of Traitors: Intimacy, Betrayal and the Sri Lankan Tamil Community” in Traitors: Suspicion, Intimacy, and the Ethics of State-Building, eds. Sharika Thiranagama and Tobias Kelly.  As Thiranagama notes, these internal betrayals are seen as the most toxic.

[28]Carson, supra note 2.

[29] Ibid.

[30] Ironically, the red flag of self-serving individualism is often used to discredit and dismiss sociopolitical rebellion. Returning once again to Rancière and his description of those invested in criminalizing democratic action as a threat to democratic government: “Today they say, there are too many rights and too few duties, too much free individual choice and too little collective discipline and social bond. Democratic individuals, now supposedly imperils democracy itself.” Supra note 21, at 94.

[31] Ernest Macintyre’s Alice articulates this call to dissident memory “…in a tragedy, some small people are always left on the stage in the end, to show that there is some life still left, to take things up again, and to tell the story…”. Peeris, supra note 8. http://www.ceylontoday.lk/35-13348-news-detail-a-sri-lankan-antigone.html.

[32] Supra note 22.

[33] Much of the passage describing Young’s views draws particularly on his discussion in “The Counter-Monument: Memory against Itself in Germany Today,” Critical Inquiry, Vol. 18, No. 2. (Winter, 1992), pp. 267-296.  See also Young The Texture of Memory: Holocaust Memorials and Meaning, Yale University Press (1993).

[34] As different interventions in these new “counter-memory” monuments, Young describes Jochen and Esther Gerz’s Monument Against Fascism inHamburg, Norbert Radermarcher’s light-beamed text projects in the Neukolln district of Berlin, and Horst Hoheisel’s negative fountain inKassel’s City Hall square.  Young, supra note 33.

[35] “Following the assassination of Neelan Tiruchelvam by the LTTE on 29 July 1999, in a spontaneous outpouring of grief and loss, friends and people with whom he worked, including from the institutions he founded, remembered and honoured him by painting peace and floral motifs and the quote ‘Secure the Sanctity of Life’ in Tamil, Sinhala and English on the surface of the road where his life was snuffed out. This initiative called for the celebration of life and sought to counter violence and disregard for humanityTere”ingauthor (the financia crisisandalism, these paintings were defaced.  emocracy. e present not just the past.  the gendered.”  Last year, in an act of political vandalism, these paintings were defaced.  See Groundviews, 5th August 2012.  http://groundviews.org/2012/08/05/obliteration-of-road-painting-commemorating-neelan-tiruchelvam-on-kynsey-road-with-photos/

[36] Four of the six commissions and tribunals mentioned were led by international actors; all were shaped to different degrees by international laws and norms..

[37] In 1999, the International Criminal Tribunal for the former Yugoslavia (ICTY) became the first international court to bring charges against a sitting head of state when it indicted Slobodan Milošević for war crimes and crimes against humanity. Established just two years after the ICTY, the International Criminal Tribunal for Rwanda (ICTR) was tasked with investigating and prosecuting those responsible for genocide and all serious violations of international law that took place in Rwanda in 1994 (http://www.ictr.org/).

[38] Appointed by then President Patricio Aylwin after the end of the Pinochet regime, the commission was tasked with investigating human rights abuses resulting in death or disappearance during the Pinochet period. More than 10 years later another commission was appointed to also investigate torture.

[39] Costas Douzinas, “The strong link between memory, law and justice indicates that modern law and historiography have a common birthday. But in a transformation of huge consequence, memory and its recollection have now been largely entrusted to law and judicial proceedings.” Douzinas explores the stakes of this designation of judge as historian in “Thesis on Law, History and Time,” Melbourne Journal of International, Vol. 7 (2006).

[40] See http://citizens-commission.org/. The commission was coordinated by Fara Haniffa and the Law and Society Trust (LST). See Fara Haniffa, “The Citizens’ Commission on the Expulsion of the Muslims from theNorthern Province by the LTTE in October 1990,” (21 Nov. 2011), http://groundviews.org/2011/11/21/the-citizens%E2%80%99-commission-on-the-expulsion-of-the-muslims-from-the-northern-province-by-the-ltte-in-october-1990/.

[41]Carson, supra note 2.

[42]  “Good democracy seems to require a reduction of this political excess” Ranciere; supra note 15.

[43] This cracking open of the reduction of justice to law comes through the voice of Irangani’s Creon “I bleed, even though my inflictions are legal.”  Peeris; supra note 8.

[44] Honig, supra note 14.

[45] Honig, “Ismene’s Forced Choice: Sacrifice and Sorority in Sophocles’ Antigone,” Arethusa 44 (2011), at 58.

[46] Wendy Brown argues that in late-liberal states, the discourse of tolerance works to normalize the power of the powerful and entrench the marginality of the “tolerated”; See Wendy Brown, Regulating Aversion: Tolerance in the Age of Identity and Empire (Princeton 2008).

[47] As suggested by the Ismail reference in the passage that follows, in contemporary Sri Lanka there is an almost seamless continuity between the “opposition of major and minor” and “the opposition of majority and minority.” However, these were not necessarily synergistic oppositions in the political landscape of Ancient Greece that was referenced by Sophocles. Indeed, as Laura Slatkin notes, my use of the term “majoritarian” in reading Creon’s power in relation to Antigone may be a solecism—(like pluralism) the contestation of “majoritarianism” may be best thought of as a possibility the play opens up or evokes in the Sri Lankan context rather than a term that has a transhistorical significance.  She makes a similar point about the morality versus justice dichotomy we referenced in the discussion of Hegel; given the normative vocabularies of ancient Greece, this may be better formulated as the tension between “unwritten laws (of justice) vs. time-bound, contingent edict of the state.” Laura Slatkin, email to author Email to author (2 July 2013).  Nanthikesan makes a parallel point about the fact that contemporary notions of ‘citizenship rights’ do not readily translate into the world of Silapathikaram.  Kannahi and Kovalan were from the Chola capital Puhar but she challenges injustice in the Pandya capital Madurai.  In this sense her challenge is not predicated on the rights of citizenship, but on questions of justice as such.  Paradoxically, in invoking Antigone or Kannahi to rethink the present, “we might make it new, as Ezra Pound insisted, in part by making it old. We might look back to look forward, finding in these uncomfortable mirrors—enraged and rigid daughters, equally enraged and rigid father-kings, warring brothers, a vexed and bemused chorus—a version of our own conundrums.”  Slatkin, supra note 11.

[48] Qadri Ismail, On (Not) Knowing One’s Place, ICES paper.

[49] I am indebted to Ali Mirapassi for pointing me to the resonance between the argument advanced here and Benjamin’s 1940 essay meditating on history and memory in Theses on the Philosophy of History.   Mirapassi, Supra note 5.

[50] I take this formulation from E.F. Watling’s translation of Antigone (Penguin, 1947).

[51] Silapathikaram (New Directions, 1965), at 125.

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