Antigone

Antigone tells the story of a young woman who openly defies the king’s edict not to bury her recently fallen brother. The young woman is Antigone. The king she defies is Creon. Complicating matters, Creon is also her uncle who has just ascended to the throne of Thebes.

Tragedy precedes his ascension to the throne. Antigone’s father, King Oedipus, has died. Her brothers, Eteocles and Polyneices, fight over control of Thebes, with Polyneices taking up arms against Eteocles to rule in the wake of their father’s death. Both brothers die in combat against each other. In the aftermath, Creon orders that Eteocles shall be buried according to religious custom because he, according to Creon, was the rightful protector of the city. But Polyneices shall be denied proper burial and left exposed to be “chewed up by birds and dogs and violated.”

Anyone who defies Creon’s decree will be punished by death.

Antigone defies Creon. She claims that his law violates the law of the Gods and, therefore, cannot be respected. Creon counters that he alone is the legitimate authority of Thebes: his law must be obeyed.

The unfolding drama compels us to examine two vital jurisprudential issues: (1) law’s foundation and (2) our duty to obey law.

Antigone marks a turning point in western thought when we began to see a conflict between the law of nature/God and the law of humankind.

This strikes at the heart of the legal divide in Antigone. The divide is known historically as natural law vs. positive law.

Natural law claims that morality is necessary for valid law. Law and morality are inseparable. For much of history, natural law meant divine law. But modern natural law theories now maintain secular underpinnings.

Positive law rejects natural law in both its religious and secular manifestations. Positive law requires only that the constituted legal authority issue the law. Morality should be kept separate, say the positivists.

Aquinas famously said in favor of natural law that, “an unjust law is not law.” By this he means laws that conflict with natural law lose their power to bind us morally. Thus a government that enacts an unjust law (unreasonable, immoral or against the common good) forfeits its right to be obeyed because it lacks moral authority. Morality, under this view, is a condition of valid law.

Blackstone in 18^th century England gave natural law his stamp of approval. English law derived its authority from natural law. One could invoke natural or “divine” source to nullify man-made law.

Our own Declaration of Independence did just that—“We hold these truths to be self-evident . . . all are created equal . . . endowed by their creator with certain unalienable rights.” Hobbes, Locke, and Rosseau premised much of their social contractarian theories of government on natural law.

A leading twentieth century American political philosopher, John Rawls, subscribed to modern versions of natural law-social contract theory, but with little or no reliance on explicitly religious foundations. Nonetheless, even a secularized form of natural law theory—premised on reason’s ability to ground law in morality—forms the basis for much of our liberal democratic institutions. Moreover, the UN’s Universal Declaration of Human Rights and the Nuremberg trials following WWII both recognized that enacted or positive law are hardly the only determinants of what constitutes valid law.

Natural law’s chief rival is positive law—the sovereign issues a command and we’re obliged to obey. The notion of law as command is at the root of positivism. Modern theories make more subtle justifications. But positivists deny the necessary connection between law and morality advocated by natural law. Law does not consist of a series of propositions correctly derived from nature through reason.

Instead, law is a social artifact that derives its validity from an objectively verifiable source. That source is the legally constituted authority, such as the legislature or the court. Law simply does not exist independent from these human forms of enactment. Furthermore, law should be kept separate from morals. A clear distinction must be drawn between law as it “is” and law as it “ought” to be.

Positivists are not indifferent to morality. They too challenge laws on moral grounds. They too attempt to reform. But they say the best way to understand law is to suspend moral judgments until we know what it is we seek to elucidate. Nor do positivists say that we always follow unjust laws simply because they are laid down on the books. Disobedience is permitted if it will promote social good.

One further point about theories of law and our duty to obey: there is no simple correspondence between our theories of law and theories of obligation to obey. For instance, we can certainly think of fine moral reasons not to break contracts, commit fraud, and violence. But does the mere unlawfulness of the act provide justification for obedience? This is the key question. In other words, does the fact of “legality” create an obligation beyond our moral obligation that we already feel?

Do we have to respect the law “as law”? (1) Is it self-evident? The law is the law which means by definition it must be obeyed? (2) Must we obey because law is essential for ordered, civilized society? Pretty dangerous social consequences may follow if we don’t follow law. A consequentialist says so, at least. (3) Have we formed an implicit contract between rulers and ruled? Both sides must honor the agreement, but consent is implicit?

In any event, we must be careful not to divide natural law theorists as those who say we can disobey unjust laws while positivists say we must follow law because the legislature enacted it.

These notes borrow from Raymond Wacks’s Philosophy of Law, A Very Short Introduction (Oxford University Press 2006). A better 100-or-so page intro doesn’t exist.