This article is written by Neel Vasant. This article does an Analysis of Antigone by Sophocles from the perspective of Natural and Positive School of Law.

Abstract

“Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress”.[1]

-Martin Luther King Jr.

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.

[1] “Quote by Martin Luther King Jr..”, http://www.keepinspiring.me/martin-luther-king-jr-quotes/, Accessed on 23 July 2018.

[2] “Meaning of Jurisprudence”, https://dictionary.cambridge.org/dictionary/english/jurisprudence, Accessed on 23 July 2018.

[3] “Natural Law Quotes”, https://www.brainyquote.com/topics/natural_laws. Accessed on 25 July 2018

[4] “Natural Law Definition”, https://www.merriam-webster.com/dictionary/natural%20law. Accessed on 25 July 2018.

[5] “The Basics of Philosophy”, https://www.philosophybasics.com/philosophers_aquinas.html, Accessed on 25 July 2018.

[6] “St. Thomas: Philosopy”, https://www.franciscanmedia.org/saint-thomas-aquinas/, Accessed on 25 July, 2018.

[7] Jill Frank, The Antigone’s Law, Law, Culture.

[8] Seamus Heaney, The Burial at Thebes — Sophocles’ Antigone, 20—21 (1st Ed. 2004).

[9] “Antigone: A Classical Greek Tragedy”, https://mthoyibi.files.wordpress.com/2011/05/antigone_2.pdf, Accessed on 23 July 2018.

[10] Transgression of Law and Justice: A Jurisprudential Analysis of Sophocles’ Antigone, 3 KIIT Student L. Rev. 80 (2016).

[11] “John Austin: Philosophy”, https://plato.stanford.edu/entries/austin-john/, Accessed on 25 July 2018

[12] The Indian Penal Code, Section 377

[13] “Section 377: The Legal Battle”, https://indianexpress.com/article/what-is/what-is-section-377-homosexuality-lgbtq-supreme-court-india-5253460/, Accessed on 25 July 2018.

[14] Bruce D. Fisher, Positive Law as an Ethic: Illustrations of the Ascent of Positive Law to Ethical Status.

[15] James V. Schall, Natural Law and the Law of Nations: Some Theoretical Considerations, 15 Fordham International Law Journal 997, 997 (1991).