Justice And Injustice In Antigone

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Law and Justice - Antigone and the Defense of Tradition - 6.4 Antigone

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It is this that Sophocles' Antigone clearly means when she says that the burial of Polyneices was a just act in spite of the prohibition: she means that it was just by nature:. And so Empedocles , when he bids us kill no living creature, he is saying that to do this is not just for some people, while unjust for others:. Some critics believe that the context of this remark suggests only that Aristotle advised that it could be rhetorically advantageous to appeal to such a law, especially when the "particular" law of one's own city was averse to the case being made, not that there actually was such a law.

The development of this tradition of natural justice into one of natural law is usually attributed to the Stoics. The rise of natural law as a universal system coincided with the rise of large empires and kingdoms in the Greek world. There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero and Seneca We think that this cannot be better exemplified than with regard to the theory of the equality of human nature. McIlwain likewise observes that "the idea of the equality of men is the most profound contribution of the Stoics to political thought" and that "its greatest influence is in the changed conception of law that in part resulted from it.

Natural law first appeared among the stoics who believed that God is everywhere and in everyone see classical pantheism. According to this belief, within humans there is a "divine spark" which helps them to live in accordance with nature. The stoics felt that there was a way in which the universe had been designed, and that natural law helped us to harmonise with this. Cicero wrote in his De Legibus that both justice and law originate from what nature has given to humanity, from what the human mind embraces, from the function of humanity, and from what serves to unite humanity. In De Re Publica , he writes:. There is indeed a law, right reason, which is in accordance with nature; existing in all, unchangeable, eternal.

Commanding us to do what is right, forbidding us to do what is wrong. It has dominion over good men, but possesses no influence over bad ones. No other law can be substituted for it, no part of it can be taken away, nor can it be abrogated altogether. Neither the people or the senate can absolve from it. It is not one thing at Rome, and another thing at Athens : one thing to-day, and another thing to-morrow; but it is eternal and immutable for all nations and for all time. Cicero influenced the discussion of natural law for many centuries to come, up through the era of the American Revolution.

The jurisprudence of the Roman Empire was rooted in Cicero, who held "an extraordinary grip The Renaissance Italian historian Leonardo Bruni praised Cicero as the person "who carried philosophy from Greece to Italy, and nourished it with the golden river of his eloquence. The British polemicist Thomas Gordon "incorporated Cicero into the radical ideological tradition that travelled from the mother country to the colonies in the course of the eighteenth century and decisively shaped early American political culture.

He admired him as a patriot, valued his opinions as a moral philosopher, and there is little doubt that he looked upon Cicero's life, with his love of study and aristocratic country life, as a model for his own. The New Testament carries a further exposition on the Abrahamic dialogue and links to the later Greek exposition on the subject, when Paul 's Epistle to the Romans states: "For when the Gentiles, which have not the law, do by nature the things contained in the law, these, having not the law, are a law unto themselves: Which shew the work of the law written in their hearts, their conscience also bearing witness, and their thoughts the meanwhile accusing or else excusing one another. Carlyle has commented on this passage, "There can be little doubt that St Paul's words imply some conception analogous to the 'natural law' in Cicero , a law written in men's hearts, recognized by man's reason, a law distinct from the positive law of any State, or from what St Paul recognized as the revealed law of God.

It is in this sense that St Paul's words are taken by the Fathers of the fourth and fifth centuries like St Hilary of Poitiers , St Ambrose , and St Augustine , and there seems no reason to doubt the correctness of their interpretation. Because of its origins in the Old Testament, early Church Fathers , especially those in the West , saw natural law as part of the natural foundation of Christianity.

The most notable among these was Augustine of Hippo , who equated natural law with humanity's prelapsarian state; as such, a life according to unbroken human nature was no longer possible and persons needed instead to seek healing and salvation through the divine law and grace of Jesus Christ. The natural law was inherently teleological , however, it is most assuredly not deontological. For Christians, natural law is how human beings manifest the divine image in their life. This mimicry of God 's own life is impossible to accomplish except by means of the power of grace. Thus, whereas deontological systems merely require certain duties be performed, Christianity explicitly states that no one can, in fact, perform any duties if grace is lacking. For Christians, natural law flows not from divine commands, but from the fact that humanity is made in God's image, humanity is empowered by God's grace.

Living the natural law is how humanity displays the gifts of life and grace, the gifts of all that is good. Consequences are in God's hands, consequences are generally not within human control, thus in natural law, actions are judged by three things: 1 the person's intent, 2 the circumstances of the act and 3 the nature of the act. The apparent good or evil consequence resulting from the moral act is not relevant to the act itself. The specific content of the natural law is therefore determined by how each person's acts mirror God's internal life of love.

Insofar as one lives the natural law, temporal satisfaction may or may not be attained, but salvation will be attained. The state , in being bound by the natural law, is conceived as an institution whose purpose is to assist in bringing its subjects to true happiness. True happiness derives from living in harmony with the mind of God as an image of the living God. After the Protestant Reformation , some Protestant denominations maintained parts of the Catholic concept of natural law.

The English theologian Richard Hooker from the Church of England adapted Thomistic notions of natural law to Anglicanism five principles: to live, to learn, to reproduce, to worship God, and to live in an ordered society. Catholicism portal. In the twelfth century, Gratian equated the natural law with divine law. Albertus Magnus would address the subject a century later, and his pupil, St. See also Biblical law in Christianity. Meanwhile, Aquinas taught that all human or positive laws were to be judged by their conformity to the natural law. An unjust law is not a law, in the full sense of the word. It retains merely the 'appearance' of law insofar as it is duly constituted and enforced in the same way a just law is, but is itself a 'perversion of law.

This principle laid the seed for possible societal tension with reference to tyrants. The Catholic Church holds the view of natural law introduced by Albertus Magnus and elaborated by Thomas Aquinas , [49] particularly in his Summa Theologiae , and often as filtered through the School of Salamanca. This view is also shared by some Protestants , [50] and was delineated by Anglican writer C. The Catholic Church understands human beings to consist of body and mind, the physical and the non-physical or soul perhaps , and that the two are inextricably linked.

Some, like procreation , are common to other animals, while others, like the pursuit of truth, are inclinations peculiar to the capacities of human beings. To know what is right, one must use one's reason and apply it to Thomas Aquinas' precepts. This reason is believed to be embodied, in its most abstract form, in the concept of a primary precept: "Good is to be sought, evil avoided. Thomas explains that:.

As to those general principles, the natural law, in the abstract, can nowise be blotted out from men's hearts. But it is blotted out in the case of a particular action, insofar as reason is hindered from applying the general principle to a particular point of practice, on account of concupiscence or some other passion, as stated above 77, 2. But as to the other, i. However, while the primary and immediate precepts cannot be "blotted out," the secondary precepts can be. Therefore, for a deontological ethical theory they are open to a surprisingly large amount of interpretation and flexibility. Any rule that helps humanity to live up to the primary or subsidiary precepts can be a secondary precept, for example:. Natural moral law is concerned with both exterior and interior acts, also known as action and motive.

Simply doing the right thing is not enough; to be truly moral one's motive must be right as well. For example, helping an old lady across the road good exterior act to impress someone bad interior act is wrong. However, good intentions don't always lead to good actions. The motive must coincide with the cardinal or theological virtues. Cardinal virtues are acquired through reason applied to nature; they are:.

According to Aquinas, to lack any of these virtues is to lack the ability to make a moral choice. For example, consider a person who possesses the virtues of justice, prudence, and fortitude, yet lacks temperance. Due to their lack of self-control and desire for pleasure, despite their good intentions, they will find themself swaying from the moral path. The Catechism of the Catholic Church considers natural law a dogma. The Church considers that: "The natural law expresses the original moral sense which enables man to discern by reason the good and the evil, the truth and the lie: 'The natural law is written and engraved in the soul of each and every man, because it is human reason ordaining him to do good and forbidding him to sin.

But this command of human reason would not have the force of law if it were not the voice and interpreter of a higher reason to which our spirit and our freedom must be submitted. Thomas Aquina resumes the various ideas of Catholic moral thinkers about what this principle is: since good is what primarily falls under the apprehension of the practical reason, the supreme principle of moral action must have the good as its central idea, and therefore the supreme principle is that good is to be done and evil avoided. He argued that the antagonism between human beings can be overcome only through a divine law , which he believed to have been sent through prophets. This is also said to be the general position of the Ashari school, the largest school of Sunni theology, [59] as well as Ibn Hazm.

Conceptualized thus, all "laws" are viewed as originating from subjective attitudes actuated by cultural conceptions and individual preferences, and so the notion of "divine revelation" is justified as some kind of "divine intervention" that replaces human positive laws , which are criticized as being relative, with a single divine positive law. This, however, also entails that anything may be included in "the divine law" as it would in "human laws," but unlike the latter, "God's law" is seen as binding regardless of the nature of the commands by virtue of "God's might": since God is not subject to human laws and conventions, He may command what He wills just as He may do what He wills.

The Maturidi school, the second-largest school of Sunni theology, as well as the Mu'tazilites , posits the existence of a form of natural, or "objective," law that humans can comprehend. Abu Mansur al-Maturidi stated that the human mind could know of the existence of God and the major forms of "good" and "evil" without the help of revelation. Al-Maturidi gives the example of stealing, which, he believes, is known to be evil by reason alone due to people's working hard for their property. Similarly, killing, fornication, and drunkenness are all "discernible evils" that the human mind could know of according to al-Maturidi.

Likewise, Averroes Ibn Rushd , in his treatise on Justice and Jihad and his commentary on Plato's Republic , writes that the human mind can know of the unlawfulness of killing and stealing and thus of the five maqasid or higher intents of the Islamic sharia , or the protection of religion, life, property, offspring, and reason. His Aristotelian commentaries also influenced the subsequent Averroist movement and the writings of Thomas Aquinas. Ibn Qayyim Al-Jawziyya also posited that human reason could discern between "great sins" and "good deeds. The concept of Istislah in Islamic law bears some similarities to the natural law tradition in the West, as exemplified by Thomas Aquinas. However, whereas natural law deems good what is self-evidently good, according as it tends towards the fulfillment of the person, istislah typically calls good whatever is related to one of five "basic goods.

Al-Ghazali , for instance, defined them as religion, life, reason, lineage, and property, while others add "honor" also. This is a concept predating European legal theory, and reflects a type of law that is universal and may be determined by reason and observation of natural action. These two terms occur frequently, though Irish law never strictly defines them. These were two very real concepts to the jurists and the value of a given judgment with respect to them was apparently ascertainable.

Although under the law any third person could fulfill the duty if both parties agreed, and both were sane. Heinrich A. Rommen remarked upon "the tenacity with which the spirit of the English common law retained the conceptions of natural law and equity which it had assimilated during the Catholic Middle Ages, thanks especially to the influence of Henry de Bracton d. Mullett has noted Bracton's "ethical definition of law, his recognition of justice, and finally his devotion to natural rights. Fortescue stressed "the supreme importance of the law of God and of nature" in works that "profoundly influenced the course of legal development in the following centuries.

The objective of every legislator is to dispose people to virtue. It is by means of law that this is accomplished. Fortescue's definition of law also found in Accursius and Bracton , after all, was 'a sacred sanction commanding what is virtuous [ honesta ] and forbidding the contrary. Christopher St. Germain 's The Doctor and Student was a classic of English jurisprudence, [75] and it was thoroughly annotated by Thomas Jefferson. Germain informs his readers that English lawyers generally don't use the phrase "law of nature," but rather use "reason" as the preferred synonym. Germain's view "is essentially Thomist," quoting Thomas Aquinas's definition of law as "an ordinance of reason made for the common good by him who has charge of the community, and promulgated.

Sir Edward Coke was the preeminent jurist of his time. After Coke, the most famous common law jurist of the seventeenth century is Sir Matthew Hale. Hale wrote a treatise on natural law that circulated among English lawyers in the eighteenth century and survives in three manuscript copies. As early as the thirteenth century, it was held that "the law of nature If the right sought to be enforced is inconsistent with either of these, the English municipal courts cannot recognize it. By the 17th century, the medieval teleological view came under intense criticism from some quarters.

Thomas Hobbes instead founded a contractarian theory of legal positivism on what all men could agree upon: what they sought happiness was subject to contention, but a broad consensus could form around what they feared violent death at the hands of another. The natural law was how a rational human being, seeking to survive and prosper, would act. Natural law, therefore, was discovered by considering humankind's natural rights , whereas previously it could be said that natural rights were discovered by considering the natural law.

In Hobbes' opinion, the only way natural law could prevail was for men to submit to the commands of the sovereign. Because the ultimate source of law now comes from the sovereign, and the sovereign's decisions need not be grounded in morality, legal positivism is born. Jeremy Bentham 's modifications on legal positivism further developed the theory. As used by Thomas Hobbes in his treatises Leviathan and De Cive , natural law is "a precept , or general rule, found out by reason , by which a man is forbidden to do that which is destructive of his life, or takes away the means of preserving the same; and to omit that by which he thinks it may best be preserved.

According to Hobbes, there are nineteen Laws. The first two are expounded in chapter XIV of Leviathan "of the first and second natural laws; and of contracts" ; the others in chapter XV "of other laws of nature". Hobbes's philosophy includes a frontal assault on the founding principles of the earlier natural legal tradition, [99] disregarding the traditional association of virtue with happiness, [] and likewise re-defining "law" to remove any notion of the promotion of the common good.

Hobbes's version is "Do not that to another, which thou wouldst not have done to thy selfe. The English cleric Richard Cumberland wrote a lengthy and influential attack on Hobbes's depiction of individual self-interest as the essential feature of human motivation. Historian Knud Haakonssen has noted that in the eighteenth century, Cumberland was commonly placed alongside Alberico Gentili , Hugo Grotius and Samuel Pufendorf "in the triumvirate of seventeenth-century founders of the 'modern' school of natural law. By way of contrast to Hobbes's multiplicity of laws, Cumberland states in the very first sentence of his Treatise of the Laws of Nature that "all the Laws of Nature are reduc'd to that one, of Benevolence toward all Rationals.

However, Haakonssen warns against reading Cumberland as a proponent of " enlightened self-interest. The U. Declaration of Independence states that it has become necessary for the people of the United States to assume "the separate and equal station to which the Laws of Nature and of Nature's God entitle them. Constitution rests on a common law foundation and the common law, in turn, rests on a classical natural law foundation. Liberal natural law grew out of the medieval Christian natural law theories and out of Hobbes' revision of natural law, sometimes in an uneasy balance of the two. Sir Alberico Gentili and Hugo Grotius based their philosophies of international law on natural law.

In particular, Grotius's writings on freedom of the seas and just war theory directly appealed to natural law. About natural law itself, he wrote that "even the will of an omnipotent being cannot change or abrogate" natural law, which "would maintain its objective validity even if we should assume the impossible, that there is no God or that he does not care for human affairs. This is the famous argument etiamsi daremus non esse Deum , that made natural law no longer dependent on theology. However, German church-historians Ernst Wolf and M. Elze disagreed and claimed that Grotius' concept of natural law did have a theological basis. Moreover, they were useful in explaining the content of natural law. Both biblical revelation and natural law originated in God and could therefore not contradict each other.

In a similar way, Samuel Pufendorf gave natural law a theological foundation and applied it to his concepts of government and international law. John Locke incorporated natural law into many of his theories and philosophy, especially in Two Treatises of Government. There is considerable debate about whether his conception of natural law was more akin to that of Aquinas filtered through Richard Hooker or Hobbes' radical reinterpretation, though the effect of Locke's understanding is usually phrased in terms of a revision of Hobbes upon Hobbesian contractarian grounds. Locke turned Hobbes' prescription around, saying that if the ruler went against natural law and failed to protect "life, liberty, and property," people could justifiably overthrow the existing state and create a new one.

While Locke spoke in the language of natural law, the content of this law was by and large protective of natural rights , and it was this language that later liberal thinkers preferred. Political philosopher Jeremy Waldron has pointed out that Locke's political thought was based on "a particular set of Protestant Christian assumptions. Paul's admonitions. The Belgian philosopher of law Frank van Dun is one among those who are elaborating a secular conception [] of natural law in the liberal tradition.

Anarcho-capitalist theorist Murray Rothbard argues that "the very existence of a natural law discoverable by reason is a potentially powerful threat to the status quo and a standing reproach to the reign of blindly traditional custom or the arbitrary will of the State apparatus. Gonce argues that "the reality of the argument constituting his system overwhelms his denial. If human beings are rational animals of such-and-such a sort, then the moral virtues are Nobel Prize winning Austrian economist and social theorist F. Hayek said that, originally, "the term 'natural' was used to describe an orderliness or regularity that was not the product of deliberate human will. Together with 'organism' it was one of the two terms generally understood to refer to the spontaneously grown in contrast to the invented or designed.

Its use in this sense had been inherited from the stoic philosophy, had been revived in the twelfth century, and it was finally under its flag that the late Spanish Schoolmen developed the foundations of the genesis and functioning of spontaneously formed social institutions. Luis Molina , for example, when referred to the 'natural' price, explained that it is "so called because 'it results from the thing itself without regard to laws and decrees, but is dependent on many circumstances which alter it, such as the sentiments of men, their estimation of different uses, often even in consequence of whims and pleasures.

This anti-rationalist approach to human affairs, for Hayek, was the same which guided Scottish enlightenment thinkers, such as Adam Smith , David Hume and Adam Ferguson , to make their case for liberty. The will of the duly authorized legislator is then wholly unfettered and guided solely by his concrete interests. However, a secular critique of the natural law doctrine was stated by Pierre Charron in his De la sagesse : "The sign of a natural law must be the universal respect in which it is held, for if there was anything that nature had truly commanded us to do, we would undoubtedly obey it universally: not only would every nation respect it, but every individual. Instead there is nothing in the world that is not subject to contradiction and dispute, nothing that is not rejected, not just by one nation, but by many; equally, there is nothing that is strange and in the opinion of many unnatural that is not approved in many countries, and authorized by their customs.

One modern articulation of the concept of natural laws was given by Belina and Dzudzek: []. In jurisprudence , natural law can refer to the several doctrines:. These meanings can either oppose or complement each other, although they share the common trait that they rely on inherence as opposed to design in finding just laws. Whereas legal positivism would say that a law can be unjust without it being any less a law, a natural law jurisprudence would say that there is something legally deficient about an unjust norm.

Besides utilitarianism and Kantianism , natural law jurisprudence has in common with virtue ethics that it is a live option for a first principles ethics theory in analytic philosophy. The concept of natural law was very important in the development of the English common law. In the struggles between Parliament and the monarch , Parliament often made reference to the Fundamental Laws of England , which were at times said to embody natural law principles since time immemorial and set limits on the power of the monarchy.

According to William Blackstone , however, natural law might be useful in determining the content of the common law and in deciding cases of equity , but was not itself identical with the laws of England. Nonetheless, the implication of natural law in the common law tradition has meant that the great opponents of natural law and advocates of legal positivism , like Jeremy Bentham , have also been staunch critics of the common law. Natural law jurisprudence is currently undergoing a period of reformulation as is legal positivism. All have tried to construct a new version of natural law. The 19th-century anarchist and legal theorist, Lysander Spooner , was also a figure in the expression of modern natural law.

It focuses on "basic human goods," such as human life, knowledge, and aesthetic experience, which are self-evidently and intrinsically worthwhile, and states that these goods reveal themselves as being incommensurable with one another. The tensions between natural law and positive law have played, and continue to play, a key role in the development of international law. Supreme Court justices Clarence Thomas [] [] [] and Neil Gorsuch [] [] are proponents of natural law. From Wikipedia, the free encyclopedia. Not to be confused with Natural justice. For other uses, see Natural law disambiguation. System of law that purports to be determined by nature, and thus be universal. See also: Treatise on Law and Determinatio.

Aquinas , Scotus , and Ockham. Further information: Fitra. Classical liberalism International legal theories Law of the jungle Libertarianism Moral realism Natural morality Natural order Naturalistic fallacy Non-aggression principle Objectivism Ayn Rand Orders of creation Philosophy of law Rule according to higher law Substantive due process Unenumerated rights Universal law. Retrieved General Theory of Law And State. The Lawbook Exchange. Translated by Hanley, Thomas R. Herder Book Co. ISBN Natural Law Forum. International Encyclopedia of the Social Sciences. London: Macmillan Publishers. Chicago: University of Chicago Press. Thomism and Aristotelianism. Westport, CT: Greenwood Press.

April Midwest Political Science Association. SSRN Summer History of Political Thought. Archived from the original on New York. London: Edmund Spettigue. New York: Oxford University Press. In Allen D. Subscribe to: Post Comments Atom. See Also.. B Every agreement is a contract. C A contrac A Competent parties B Reasonable terms and condition B Illegal agreements are always voidable. C Illegal a Possession : Meaning, Definition and Kinds of possession. According to Salmond, in the whole range of legal theory, there is no conception more difficult than that of Possession. Damnum sine injuria.