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 18th 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.
Analysis of the play Antigone by Sophocles from the perspective of Natural and Positive School of Law

The term ‘Jurisprudence’ means the study of law or the science of law.[2] There are various branches or school in the field of
jurisprudence such as Natural Law School, Realist School of Law, Positive School of law and others. All the theories have different
meaning as to what is right and wrong. Literature is identified by scholars as being universal in its representation of ideas and
arguments, this article uses Sophocles’ Antigone to discuss the conflicting claims of natural and positive law as determinants of justice.
This play gives rise to many questions as to is an act which is legally wrong but morally right can be made punishable? Thus, it is an
attempt to answer several such questions and to critically analyse the Natural and Positive Law Theory, with special emphasis on Saint
Thomas Acquinas (Natural Law School) and John Austin (Positive Law School).

Keywords: Jurisprudence, Antigone, Natural Law Theory, Positive Law Theory.

Antigone and Natural Law

“Every person has free choice. Free to obey or disobey the Natural Laws. Your choice determines the consequences”[3]

Natural Law is that theory of law which means that the laws are derived from nature and acts as a binding force upon the human
society.[4] In the play Antigone after the death of King Odeipus, a civil war was broke which in the end resulted in death of ‘Polinices’.
Antigone – The Protagonist of the play went against the royal order of Creon and gave a royal and an honourable burial to her brother.
In this story the law of the land was that no one shall give royal burial to Polinices, but Antigone decided to go against this order, as she
believed in the theory of Natural Law – The theory of Saint Thomas Aquinas. [5]

Thus, Antigone despite breaking the law of land, felt that her act was justified as she believed that there is something over and above
the law of land which are moral. In this story after the death of Odeipus, his successor King Creon believed in the theory of man made
laws. Antigone had a firm belief that Gods have authorised people to give a respectful burial. And thus, following God’s wish/command
has a more priority than following the man-made rules. he values portrayed in works of literature such as Sophocles’ Antigone reflect on
the true nature of man and implore us to adopt certain ethical principles, which will make us socially responsible, lawyers.

According to St. Thomas Aquinas it is also to be noted that the primary function of law is to secure peace and to make sure that proper
justice is given to the victim.[6] However, it is also worthy to note that one of the concept of Criminology is that the offender should be
punished to an extent which would deter him from committing any crime in future. Morality although not legally enforceable is one of the
main sources of law, and a moral crime being made worse when sanctioned by the law as in the case of punishment given to Antigone
for giving a respectful burial to his dear brother.[7] When Antigone was arrested for breaching the man-made law, following was her
response: –

Antigone: I disobeyed because the law was not, The Law of Zeus nor the law ordained, By Justice, Justice dwelling deep, Among the
gods of the dead. What they decree, Is immemorial and binding for us all.[8]

Antigone and Positive Law

“Have I offended the Gods? Do the gods have no regard for what I did?[9]

This was the statement made by Antigone just before she was subjected to the cruel punishment by King Creon. This shows to the
readers that she acknowledges that her suffering is the proof of her mistake in obeying her duties, however, she does not defer from
her seemingly adamant position that Creon has erred completely in his path of actions. John Austin was the major proponent of the
theory of positivism. According to him law is in form or order issued by a superior to an inferior and not a wish, desire or request. There
is no option or choice to obey it. And the person has a legal duty to follow the rules laid down and in case of disobedience, punishment
is given. Thus, according to this school, the punishment attributed to Antigone for not following the order was valid.

Sophocles’ Antigone as it touches upon the issue of the legitimacy of power of an autocratic ruler Creon, explores how a possible
conflict between power and justice has the capacity to create chaos in society.[10] The main argument of people supporting the natural
law over the positive law is that the former is universal in a sense and thus there exist a common understanding on any given issue.

One can find the personification of positivism in the attitude and behaviour of King Creon who boycotts any moral principle while
punishing Antigone. Creon believed that if he would be liberal in his approach than the city of Thebes would fail to function properly. And
thus as a result he considers a positive law approach as his political ideology. The ideology of Creon was quite similar to the views of
John Austin where he is of the opinion that it is necessary to forego human emotions and to define legal duties in a strict manner.

According to Austin law is a command of a sovereign which is backed by a sanction.[11] According to Austin the command or the order
given by the sovereign is supreme and non-compliance with it would attract heavy punishments. Such commands issued by the
sovereign gives rise to a legal duty. There was no place for morality in Austinian Theory.

Present Day Example

In the current setup there is a lot of buzz around regarding scrapping of Section 377 of the Indian Penal Code. Section 377 deals with
an unnatural offence which criminalises homosexuality.[12] This debate is ongoing since a very long time. It was in the year 2009 that
the Delhi High Court declared Section 377 as unconstitutional, however, the apex court overruled this judgement way back in 2013.[13]
It was in the initial months of 2018 that the Supreme Court decided to review the earlier judgement.

There are mainly two arguments on this on-going debate. According to the positive law section 377 should be an offence because it is
the law of the state, which is backed by a sanction. Positive Theory of Law states that the man-made laws are to be considered as
sacrosanct[14]. On the other hand, the Natural Law believes that man made laws can never stand against the natural laws. Everyone is
born in this world with a special and a unique trait. Just because a particular person attracted to a person from the same gender doesn’t
or shouldn’t fetch him a punishment.

Conclusion
“The narrative in legal theory, like all narrative, brings us face-to-face with our moral selves, our moral options and our capacity for
moral action”[15]

The play Antigone is just not limited to being a tragedy but it still keeps alive the debate of law and morality. Both the theories i.e.
Natural and Positive Law are completely opposite but both help us as determinants of justice. After analysing the play, we can conclude
that law is a very important for justice delivery in the society, however with changing times there should also be change in the laws to
meet the claims made unto us by the Natural Laws which are universal in nature.