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Introduction

Which law is greater: the god’s or the man’s is a question asked by Sophocles in Antigone. Sophocles’ vote is on the law of the gods, and this is based on the need to save Athens from the moral destruction which seems eminent[1]. Sophocles puts into the mouth of the eponymous heroine of his Antigone an argument to justify her disobedience to her uncle Creon, who forbids her from burying her brother Polyncices. The argument held by Antigone is considered to be an appeal from the concept of natural law. This paper therefore seeks to establish the relevance of Sophocles play, in understanding the law of the contemporary Australian context, in the perspective of a natural law theorist.

 

Natural law in Antigone

Antigone believes that the gods have commanded people to give the dead a proper burial, and that she has a greater loyalty to her brother hence required to perform his burial rites that she does to the law of the city of Thebes that bans her from doing so. In this case, the wishes of the gods and the sense of duty she has to her brother are example of natural law. These two cases of natural law, to Antigone outweigh any man-made law[2]. In this case, Sophocles’ play Antigone seems to confirm the superiority of natural law over positive (man-made) law. Antigone says “Nor did I think your orders were so strong that you, a mortal man, could over-run the gods’ unwritten and unfailing laws. Nor now, nor yesterday’s, they always live, and no one knows their origin in time. So not through fear of any man’s proud spirit would I be likely to neglect these laws, draw on myself the gods’ sure punishment”[3]. The conflict and struggle between Creon and Antigone is an indication of the conflict that exists in the higher moral law- natural law, on one hand the man-made law on the other hand.

Creon pronouncements which are example of positive laws that Polyncices’ body should not be buried are not only the embodiment of the arbitrary powers of rulers, but also of a transitory nature. According t Augustine, such positive law is unjust law and therefore “no law at all.”[4] This is considered to be a revelation on the imperfections of man-made laws and serves as an emphasis on their inferiority. Thomas Aquinas considers positive laws unjust when it affronts natural law and therefore, such laws must never be obeyed for he says, “We ought to obey God rather than men”[5]. In this statement, Aquinas metaphorically associates natural law with God and positive law with man. This association is used on the preconception that the former is higher in value and power than the latter. Therefore, natural law is a creation of God and has an unquestionable divine origin. Natural law is superior in its obligatory power to all other laws and positive laws are of no validity if they are contrary to natural law[6]. Moreover, the laws of God (natural law), by virtue of the Divine Origin is regarded are superior to positive law.

Through natural law in Antigone, an individual has a right to reject society’s infringement on his/her freedom to perform a personal obligation. Antigone’s comments to Ismene with regard to Creon’s edict, “He has no right to keep me from my own”[7]. The contrast in views between Antigone and Creon with regard to the laws higher than those of the state inform the different conclusions they have on civil disobedience[8]. Creon who demands obedience to the positive law[9] above all else, right or wrong says there is nothing worse than disobedience to authority. On the other hand, Antigone responds with the idea that state law in not absolute and it can be broken in civil disobedience in extreme cases such as honouring the god’s whose authority and rule outweigh Creon’s.

Creon’s decree to leave Polyncices unburied in natural law is in itself a bold statement about what it means to be a citizen and what constitutes abdication of citizenship. Given Antigone is scripted in the culture of Ancient Greek; it was a firmly kept custom that each city was responsible for the burial of its citizens. By prohibiting the people of Thebes from burying Polyncices, Creon was placing him on the same status as the other attackers. Creon’s perspective was based on the fact that, Polyncices has attacked the city and therefore he has effectively revoked is citizenship and made himself a foreigner, because as defined by Creon’s degree, citizenship is based on loyalty[10].

On the other hand, Antigone through her belief in the superiority of natural law believes that, Polyncices has betrayed the state, but the betrayal doesn’t rob him of the connection that he would have otherwise had with the city. This conflicting beliefs form a new axis of conflict in the city. Creon believes that citizenship is contract-oriented, therefore not inalienable or absolute, and it can be lost depending on the circumstances. The conflicting views on citizenship – citizens is absolute and undeniable and citizenship based on behaviour – are known to be citizenship “by nature” and citizenship “by law” respectively.

In her determination to bury Polyncices, Antigone bears a desire to honour her family and the higher law of the gods – natural law. She declares in several occasions that she must act to please those that are dead[11] for they hold more weight than any ruler – the weight in natural law. Out of this strong desire, Antigone makes an appeal to her sister, Ismene, to help in burying Polyncices and thus protect him out of sisterly love, even if he did betray their state. Antigone believes there are inalienable rights because they come from the highest authority or authority itself, that is natural law which is law from the gods and therefore divine[12][13].

 

Relevance of Antigone in Australian context

Antigone marks a turning point in western thought[14] – which Australian law is oriented to – when there began a conflict between law of nature/God and the law of humankind. This is the heart of the legal divide in Antigone, a divide which is historically known as the natural law vs. positive law. Natural law claims morality is a primary requirement for valid law hence low and morality are inseparable. For the better part of history and as argued by Burns[15], natural law meant divine law. However, modern natural law theories have kept secular underpinnings. Man-made law rejects natural law in both secular and religious manifestations. Implementation of positive law requires that the legal authority recognized through the constitution should issue the law and morality should be kept aside.

Nevertheless, natural law seems to be particularly evidence in Australian positive law. First, from a standpoint of natural-law theory, positive law through common-law is one of the determinations the society might choose in establishing a system, of justice, by settling on a particular and stable legal process[16]. Common/case law, which is a result of positive law, forms a felicitous piece that minimizes the role of authority, rule, and the political power[17] and maximises the role of both individual liberty and community assent in justice administration process and therefore serves the demands of natural law. Even though due process doesn’t ensure that courts exert neither will nor force, but simply judgement, the checks and balances that are in positive law formalities – from the distinction between jury and judge, to the right of appeal and the adversarial nature of proceeding – have seemed to make it more likely to its proponents. In addition, the centrality of the jury in positive law is an indication of deference to common sense at the center of the system and thus it is a restraint on elite theorizing and partisan will.

The second instance of natural law in the Australian positive law is in the process of reasoning in appellate courts. In the majority of appealed disputes, both of the sides have an opportunity to argue precedents in their favour, but depend on the set of precedents that form the better analogy to the pattern of facts in the current case. An example; is an exchange of instant messages like a phone conversation which doesn’t have the potential to change a contract or like an exchange of written documents which can? Is a motor home like a house thus entitled to constitutional protection from warrantless searches or like motor vehicles which are searchable upon reasonable suspicion? It is by no chance that these examples involve technological changes because this is considered to be a common source of genuinely new cases. These new cases by contract suggest a reinterpretation of established precedents, positive law under common law presumes in favour of the true and tried over innovation.

Natural law, even though in principle is anchored in immutable human nature doesn’t prevent all change in positive law and in some cases, it might even command it. For a positive law to remain when the circumstance in which it arose has changed, the law itself might have to change[18]. The capability of positive law to develop in the case of reason as a series of precedent unfolds has led scholars to allude to the texture of law in such a system, like the Australian positive law. The fact that the law is not written allows judges to adjust the law without exerting raw power while at the same time, the formal process of judging, hearing arguments from both sides, focusing on a precise issue in dispute, settling only the current case and therefore changing the law only as the new rule becomes widely respected and adopted – needs to dampen the arbitrariness of such adjustments[19].

The third natural law instance in Australian positive law judging appears in the adage that nothing that is contrary to reason that can be lawful even when the presumption in the common law is for the true and tried. The primary concept is that the law will brook no contradiction within itself and not that judges need be set up as philosopher-kings for ensuring abstract reasoned rules[20] thus, positive law judges try first to breach apparent issues and accommodate all the various sources of law that are applicable to particular case. It is argued that, when positive law is against reason and the common right, it is impossible to be implemented, or it is repugnant, natural law and common law will control it and adjudge it to void[21].

In English practise, it has been held that parliamentary sovereignty overrides claim of reasonableness and in other jurisdiction like Australia and the US[22], this idea has led to the start of judicial review – court power to take down statutes or executive orders, which form part of positive law, that contradict written natural laws for example human rights. Like natural law, positive law and case law maxim that nothing that is against reason can be lawful is not enough to create a whole new jurisprudence by itself but is create a case by case to do away with contradictions in law and therefore make the law reasonable whole[23].

English aw, which forms the basis of Australian law[24] derived its authority from natural law and as a result, it is possible for one to invoke divine or natural source to nullify man-made law. Parts of international to which Australia has integrated into its law for example, UN’s Universal Declaration of Human Rights[25][26] recognize that positive law or the enacted law doesn’t have the required impetus to qualify as the valid law. The sovereign – natural law – issues a command and every individual within that jurisdiction is required to obey[27]. The root of natural law is the notion of law as command, but this is not the root of positive law and modern theorists make more subtle justifications.

Law is a social artefact that is believed to derive its objectivity from an objectively verifiable source. This is the construct of natural law and positive law borrows this structure by having its validity[28] from legally constituted authority for example legislature or courts. Moreover, the existence of natural law depends on the existence of independent from the human forms that forms the active enactment part, and so is positive law. Natural law is based on morality and so is positive law which attempts to reform, and challenge laws based on moral grounds[29]. To this effect, it can be argued that, positive law is simply founded on natural law.

 

Conclusion

Sophocles’ play Antigone seems to confirm the superiority of natural law over positive (man-made) law. The conflict and struggle between Creon and Antigone is an indication of the conflict that exists in the higher moral law- natural law, on one hand the man-made law on the other hand. Creon pronouncements which are example of positive laws that Polyncices’ body should not be buried are not only the embodiment of the arbitrary powers of rulers, but also of a transitory nature. Through natural law in Antigone, an individual has a right to reject society’s infringement on his/her freedom to perform a personal obligation. Antigone is relevant in Australian legal context for it marks a turning point in western thought – which Australian law is oriented to – when there began a conflict between law of nature/God and the law of humankind. Natural law seems to be particularly evidence in Australian positive law. First, from a standpoint of natural-law theory, positive law through common-law is one of the determinations the society might choose in establishing a system, of justice, by settling on a particular and stable legal process. The second instance of natural law in the Australian positive law is in the process of reasoning in appellate courts. Natural law, even though in principle is anchored in immutable human nature doesn’t prevent all change in positive law and in some cases, it might even command it. The third natural law instance in Australian positive law judging appears in the adage that nothing that is contrary to reason that can be lawful even when the presumption in the common law is for the true and tried.

 

Reference

  1. Augusto Zimmermann, ‘Legislating Evil: The Philosophical Foundations of the Nazi Legal System’ (2010) 13 International Trade and Business Law Review 221, 231.
  2. Bernard Knox, The Heroic Temper: Studies in Sophoclean Tragedy (Berkeley: U of California P, 1964), p. 97.
  3. Brian H Bix, ‘Legal Positivism’ in Martin P Golding and Willam A Edmundson (eds), The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell Publishing Ltd, 2005) 29-30.
  4. Burns, T. Sophocles’ Antigoneand the History of the Concept of Natural Law. 2002, Political Studies, 50: 545–557. doi: 10.1111/1467-9248.00384
  5. Chris Roederer and Darrel Moellendorf, Jurisprudence (Juta and Company Ltd, 2007) 45.
  6. Fagles, Robert,The Three Theban Plays. 1986, New York: Penguin.
  7. Grabriel A Moens, ‘The German Border Guard Cases: Natural Law and the Duty to Disobey Immoral Laws’ in Suri Ratnapala and Grabriel A Moens (eds), Jurisprudence of Liberty (LexisNexis Butterworths, 2nd ed, 2011) 271.
  8. J M Kelly, A Short History of Western Legal Theory (Oxford University Press, 1992) 303.
  9. Jussi M Hanhimaki, The United Nations: A Very Short Introduction (Oxford University Press, 2008) 11.
  10. Kenneth D. Whitehead, “Family Values, Moral Values” in Catholic League Newsletter (July-August 1993) pp. 7-8.
  11. Levy, Charles S. Antigone’s Motives: A Suggested Interpretation. Transactions of the American Philological Association1963, 94: 137–44. doi:10.2307/283641
  12. Marett Leiboff and Mark Thomas, Legal Theories: Contexts and PractiCes (Lawbook Co, 2009) 262.
  13. Maura Strassberg, Taking Ethics Seriously: Beyond Positivist Jurisprudence in Legal Ethics, 80 IOWA L. REV. 901, 921 (1995)
  14. Rice, C. 50 questions on the natural law: What it is and why we need it.  1993, San Francisco, CA: Ignatius Press.
  15. Robert Maddex, International Encyclopaedia of Human Rights: Freedom, Abuses, and Remedies (CQ Press, 2000) 347.
  16. Rodger D Citron, ‘The Nuremberg Trials and American Jurisprudence: the Decline of Legal Realism, the Revival of Natural Law, and the Development of Legal Process Theory’ (2006) Michigan State Law Review 385, 398.
  17. Russell Kirk, The Politics of Prudence (Bryn Mawr: Intercollegiate Studies Institute, 1993) pp. 1, 3.
  18. Segal, Charles.Tragedy and Civilization: An Interpretation of Sophocles. 1999, Norman, OK: University of Oklahoma Press. p. 266.
  19. Steiner, George.Antigones: How the Antigone Legend Has Endured in Western Literature, Art, and Thought. 1996, New Haven: Yale University Press.
  20. Steven W. Fitschen, Impeaching Federal Judges: A Covenantal and Constitutional Response to Judicial Tyranny, 10 REGENT U.L. REV. 111 (1998)

[1] Burns, T. Sophocles’ Antigone and the History of the Concept of Natural Law. 2002, Political Studies, 50

[2] Marett Leiboff and Mark Thomas, Legal Theories: Contexts and PractiCes (Lawbook Co, 2009) 262.

[3] Fagles, Robert, The Three Theban Plays. 1986, Note 11

[4] Burns, 2002, p. 547

[5] Fagles, 1986, Note 13

[6] Ibid, Note 15

[7] Ibid, line 48

[8] Augusto Zimmermann, ‘Legislating Evil: The Philosophical Foundations of the Nazi Legal System’ (2010) 13 International Trade and Business Law Review 221, 231.

[9] Brian H Bix, ‘Legal Positivism’ in Martin P Golding and Willam A Edmundson (eds), The Blackwell Guide to the Philosophy of Law and Legal Theory (Blackwell Publishing Ltd, 2005) 29-30.

[10] Levy, Charles S. Antigone’s Motives: A Suggested Interpretation. Transactions of the American Philological Association 1963, p. 138

[11] Fagles, 1986, An. 77

[12] Levy, Charles S. 1963, p. 141

[13] H.L.A. Hart, Positivism and the Separation of Law and Morals, 71 HARV. L. REV. 593 (1957).

[14] J M Kelly, A Short History of Western Legal Theory (Oxford University Press, 1992) 303.

[15] 2002, p. 549

[16] Chris Roederer and Darrel Moellendorf, Jurisprudence (Juta and Company Ltd, 2007) 45.

[17] Russell Kirk, The Politics of Prudence (Bryn Mawr: Intercollegiate Studies Institute, 1993) pp. 1, 3.

[18] Levy, Charles S. 1963, p. 145

[19] Burns, 2002, p. 549

[20] Kenneth D. Whitehead, “Family Values, Moral Values” in Catholic League Newsletter (July-August 1993) pp. 7-8.

[21] Ibid p. 553

[22] Rodger D Citron, ‘The Nuremberg Trials and American Jurisprudence: the Decline of Legal Realism, the Revival of Natural Law, and the Development of Legal Process Theory’ (2006) Michigan State Law Review 385, 398.

[23] Levy, Charles S. 1963, p. 149

[24] Ibid p. 154

[25] Robert Maddex, International Encyclopaedia of Human Rights: Freedom, Abuses, and Remedies (CQ Press, 2000) 347.

[26] Jussi M Hanhimaki, The United Nations: A Very Short Introduction (Oxford University Press, 2008) 11.

[27] Steven W. Fitschen, Impeaching Federal Judges: A Covenantal and Constitutional Response to Judicial Tyranny, 10 REGENT U.L. REV. 111 (1998)

[28] Maura Strassberg, Taking Ethics Seriously: Beyond Positivist Jurisprudence in Legal Ethics, 80 IOWA L. REV. 901, 921 (1995)

[29] Grabriel A Moens, ‘The German Border Guard Cases: Natural Law and the Duty to Disobey Immoral Laws’ in Suri Ratnapala and Grabriel A Moens (eds), Jurisprudence of Liberty (LexisNexis Butterworths, 2nd ed, 2011) 271.


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