This is the 2nd lecture of [[James Orr]]'s [[PA Philosophy of Law]] course on [[Peterson Academy]]. > [!note] Notes restructured as questions → answers → objections. --- ## 0. The question this lecture turns on **What happens when the law commands something you consider gravely unjust?** The law claims you must obey; morality urges you not to. This is not merely a practical dilemma. It is a **conceptual** puzzle: if a law commands something plainly immoral, *is it actually a law*? Does it have any claim on you, any authority over you — or does it forfeit that claim by virtue of its content? | **Natural law** | **Legal positivism** | |---|---| | It isn't a law. No paradox, no contradiction — it fails to converge on morality, so it is not law. | It is still a valid law. **Validity and morality are distinct questions.** | | | Crucially: this does **not** entail that you must obey it. The positivist says only that you cannot dissolve the problem by denying it is law. Moral assessment is a separate exercise from the test of legal validity. | --- ## 1. The dramatization: Sophocles' *Antigone* (c. 441 BC) **Why it matters that Sophocles is not a monotheist.** There is no god at the top perfectly promulgating law, as in the later Jewish, Christian, and Islamic traditions — just many gods with different favourites and ambitions, squabbling, capricious, unpredictable, not especially pleasant. And yet the play brings the tension between particular and universal law alive better than almost any other work in Western literature. **Setup.** Thebes — disliked in the 5th century, treacherous, cowardly, sided with Persia in the Persian Wars; a standard setting for tragedy. After a siege: **Eteocles** defends the city, his twin **Polynices** attacks it at the head of a foreign army, and they kill each other in single combat. **Creon** (Greek: "ruler," "powerful") takes the throne. Eteocles receives full burial honours; Polynices is decreed to lie unburied, left for the vultures and dogs, with execution for anyone who buries him. **Antigone**, their sister, buries him anyway with a simple rite, is caught, and is brought before Creon. Asked whether she knew of the decree, she says she knew exactly what the law was. ### Antigone's answer: there is a higher law She dared to disobey because it was not Zeus who made that proclamation, nor **Justice** (*dikaiosyne*) who lives with the gods below, that established such laws among men. Creon is mortal and his proclamations are mortal; they cannot overrule the ***agrapha nomima*** — the unwritten, unfailing ordinances of the gods, which live not just today and yesterday but forever, and of which no one knows how long they have been in place. **Five properties of the higher law, as she describes it:** 1. **Unwritten** — yet universally known 2. **Universal** — not the law of one city 3. **Divine in origin** — Creon is not Zeus and has no right to lay down unjust prescriptions 4. **Unchangeable** — no human law can overrule it 5. **Immemorial** — of unknown antiquity **Content:** bury the dead, especially your own kin. Honour family bonds; respect the gods, who want a swift burial; fulfil sacred duties. ### The modern echo: *jus cogens* *Jus cogens* — "a law that compels" — is the short list of norms no treaty between states can override: the prohibition on torturing the innocent, on unjust imprisonment, on genocide. **No two or more states can agree between themselves to set these aside.** **The natural lawyer's argument from this:** the existence of such a list is evidence that Antigone is right. Neither the UN, the WHO, the ICJ, nor any supranational body may overrule them — and what invalidates an attempt to do so is *not another law* but a common consensus that this list is somehow sacred. ### Creon's answer: the positivist case (and Sophocles' genius is that it is a real case) 1. **I am not a tyrant.** Not a tinpot dictator who seized Thebes. I was set up in authority *by the city*, to be obeyed in small things and just things and in everything. Nobody alleges procedural irregularity in my accession. 2. **The authority is the office's, not mine.** It is not authority I possess as an individual; it is conferred by an office I lawfully hold. Because I hold it, I have the power to make law. 3. **Validity by source, not content.** The law is what I command it to be — not by whether it is just, but by the fact that I, duly appointed, issued it. Respect for law means complying even when you disagree. 4. **The equality argument — his strongest.** Suppose the law applies to everybody *except* when a pretty young girl comes before me and makes a moving speech. What does that do to respect for law? Law cannot be applied selectively; it depends then on whether Creon is having a good day. **If it applies differently to one person than another, it loses its legitimacy — and then there is a good case that nobody should obey it at all.** 5. **The security argument.** He is responsible for the city's defence and for deterring future Polyniceses. Those who attack the civic order must face consequences; he would be failing the office he was appointed to uphold if he did not impose them. ### Why it's a tragedy, not a morality play Greek tragedy depends on a terrible paradox or forced choice where suffering follows either way — no cheerful option, no cost-free option. This is not a horrible tyrant against a misunderstood girl. The audience is probably with Antigone in the end, but Creon is not acting irrationally, unlawfully, or illegitimately. **Ending:** Antigone dies; Creon's son **Haemon**, in love with her, kills himself; Creon's wife kills herself. Creon is left alone, a broken man — and we feel for him, caught in his absolute commitment to his office and to the law. **Oppositions the play sets running:** family vs. state · religion vs. politics · divine vs. human law · sacred vs. civic duty · individual conscience vs. common good and collective order. ### The parallel: Javert in Hugo's *Les Miserables* A senior police officer in early 19th-century France, an absolute stickler for rules, principles, and justice, who pursues Valjean throughout. At the climax he is confronted by Valjean's act of extraordinary **grace** — which is *incomprehensible* to someone committed to binary, non-selective application of principle. **The law does not forgive; the law has no emotions; it sets down the rules, and you have either broken them or you haven't.** Like Creon, he earns our sympathy at last, as he throws himself into the Seine. *(This picks up Lecture 1's point that morality can demand what law constitutively cannot: forgiveness, supererogation.)* --- ## 2. The natural law corner ### Augustine and Aquinas: just war as the proof of concept Augustine works out criteria for when war is just — **and crucially not for any particular parliament or lawmaker.** You may get domestic legal backing from Congress or a prime minister; the question just war theory asks is whether it is right *beyond* that. This is the clearest illustration of what natural law claims to be: a law governing all nations and peoples, not any particular law. Criteria discussed: - **Preventing the suffering of the innocent** — a legitimate reason, and a *necessary but not sufficient* condition. - **Proportionality** — is the war waged proportionally to how it is waged against you? (This is where nuclear weapons come in.) - **Prospects of success** — if there is no realistic hope of achieving your ends, that is a reason *not* to go to war even with everything else in place. If you are too small to have any impact, you should not risk the health, safety, order, and lives of your society on a hopeless decision. ### Aquinas' definition of law Law is an ***ordinatio*** — not merely an order but an *ordination*: the idea of society being **straightened**, pointed toward its flourishing. Four requirements: 1. an **ordinance of reason** 2. for the **common good** 3. made by a **legitimate lawmaker** 4. **promulgated** — it is no good for Parliament to pass something nobody hears about. Technically law, but unknown, and Aquinas says that isn't good enough: it must be widely known, or at least publicly accessible. *Example:* "don't kill people on the roads" is the underlying requirement; drive-on-the-left and drive-on-the-right are equally valid implementations. Safe roads are part of the common good, and securing them is simply what a law *is*. ### Aquinas' architecture of law | Level | Content | |---|---| | **Eternal law** | In the mind of God | | **Divine law** | Scripture. The Old Testament governs outward behaviour and conduct; the New Testament is the law of the heart, the inner law that frees us from the law governing us from outside | | **Natural law** | Sits *over* human law | | **Human law** | International law, civil law, positive law, statutes, judgments in court cases | **The unifying image: two divinely authored books.** The book of *Revelation* and the book of *nature* — natural law because God authors nature, divine law because God authors Scripture through fallible human beings. Both flow from the authority of a maximally excellent being. **Philosophical ancestry:** [[Plato]]'s insistence that reason aims at the good, and the distinction between **natural** and **conventional** justice. ### Decline and revival **Decline.** Dominant for many centuries, then from roughly the early 19th century it ceased to be a serious option for philosophers of law — seen as too invested in religious commitments. **Objection to that diagnosis:** only partly true. **Cicero** is one of the great exponents of natural law and is not religious in any normal sense (he believes in the Roman gods to some extent, but not much). Conceptually, one can hold that there is a way it is good to be, consistent with our nature as natural beings, such that law ought to command this and forbid that — **without bringing God into it at all.** **Revival — the Finnis story.** In the 1970s **H. L. A. Hart** — a legal positivist, the top professor at Oxford, already distinguished — was commissioned by OUP to build a series systematically covering the philosophy of law. He judged that the series could not omit natural law, even though nobody took it seriously "except the God people." Nobody at Oxford was willing or able to write it. So he turned to a young Australian Catholic doctoral student, **John Finnis**: *you believe this stuff — have a go.* A notably gracious act of intellectual generosity. The result, ***Natural Law and Natural Rights*** **(1980)**, was meant to be a gap-filling textbook. It almost single-handedly returned natural law to the argument and founded the **"new natural law"** school — Finnis, **Germain Grisez**, **Joseph Boyle**, **Robert George**. Finnis went on to hold the senior law chair at Oxford in his turn: the king of legal positivism giving way to the new prince of natural law. ### Finnis' argument: self-evident basic goods We know what good looks like without needing arguments for it. There are goods we have a basic, almost perceptual contact with — **seven** of them — and all our laws and rights derive from them. - **Life.** Someone who asks "why?" needs a therapist more than a philosopher. All things equal, life is a basic good; a law, rule, or behaviour that treats it as not being one is morally suspect. - **Knowledge.** As Aristotle says, human beings are driven by nature to understand. The dolphin likes to swim; we like to think. - Also friendship, play, and others. **The decisive move: no God required.** Part of what it *is* for a basic good to be basic is that you don't justify it by appeal to anything else. You need no prior commitments — theological or otherwise — to see that life is good. This is the engine of the new natural law. ### The necessary clarification: *natures*, not *nature* Natural law does **not** claim we are merely mammals and may therefore behave as any animal in the animal kingdom does. *The seahorse objection:* in debates over same-sex marriage, "but seahorses engage in same-sex relations — it's natural." **Reply:** that only follows if all animals sit on an absolute plane for working out what they ought to do. Why think that? We should not be thinking about *nature* but about *natures*. It may turn out we are relevantly connected to seahorses in some property of our nature — but that is a whole separate argument that has to be made, not assumed. **Aristotle's ladder underwrites this:** | Faculty | Shared with | |---|---| | Nutritive — feeding, reproducing | Plants | | Sensory perception | Animals | | **Reason** | Nothing else, to our degree | So any question about what promotes the flourishing of *this particular species* must have reason somewhere in the mix. --- ## 3. Cost-benefit on natural law ### Advantages 1. **A powerful basis for attacking unjust laws.** Antigone against Creon; **Wilberforce** against the slave trade in the 1790s; civil rights activists against the laws sustaining segregation. 2. **It connects law directly to human flourishing**, giving a reasonably clear test of whether a legal system is working: are people flourishing, or not, or could they flourish more? 3. **It solves the puzzle of international law.** The problem: where does international law get its authority? Not democratically — "international" means beyond the nation and therefore beyond national deliberative processes. And who enforces it? The US has never accepted the jurisdiction of the **ICC** in The Hague (not obviously a bad decision, on the lecturer's view): in roughly two decades the court has secured barely a handful of convictions and has made plainly political choices about whom to prosecute. So *who cares about The Hague?* **The natural law answer:** international law simply *is* natural law — what we already ought to do, exemplified with varying success in different countries, and what all legal systems ought to be converging on. ### Objections **1. The epistemological objection.** *(Epistemology, from* episteme*, knowledge: the relation between knower and known, perceiver and perceived.)* How can you just *see* or *know* what nature tells us we ought to do? It may feel obvious in some cases, but you can always find a tribe in Papua New Guinea doing the opposite. **2. Disagreement.** People disagree about what natural law consists in. How are those disputes to be adjudicated? **3. The variation objection.** If natural law is universal, why the enormous variation in practice across cultures? ### Reply to the variation objection: Herodotus, *Histories* 3.38 Darius summons two groups to court: the **Callatiae**, probably an Indian tribe, and some **Greeks**. He asks each about burial. The Indians prepare the bodies, prepare the banquet, and eat their dead — and the Greeks howl in horror. The Greeks cremate their dead as soon as possible with proper honours — and the Indians howl with horror at the thought of putting one's forefathers to the flame. Herodotus concludes ***nomos ho panton basileus***, custom is king of all: each to his own. **The lecturer's counter: Herodotus draws exactly the wrong conclusion.** The same principle drives both practices — **honour the dead, and especially your own dead**, which is precisely the force of Antigone's argument. The Indian rationale (ingest the genius of your forefathers so they remain with you in body and spirit) is not crazily irrational; the Greek rationale differs; both express a non-negotiable commitment to giving the dead the treatment their honour requires. **Structurally this is the left/right driving case again:** divergent practice, identical underlying norm. The general principle: don't be over-impressed by surface diversity in a way that blinds you to shared moral purpose. Dig into a strange practice, inhabit the thought-world, and there is nearly always an inner rationale accessible to us even across a vast anthropological distance. --- ## 4. The positivist corner ### What positivism does *not* claim - **Not** that law and morality are unrelated — they often overlap. - **Not** that law shouldn't try to be moral or pursue moral ends. ### What it does claim > **"What is the law?" and "What ought the law to be?" are two different questions.** You can establish what the law is by observing a society — what behaviours are enforced, enacted, and recognised — while remaining agnostic about whether those laws are good or bad. The question of what law *ought* to be is not a question for the lawyer or the judge; it belongs to the moral and political philosopher, to voters at large, to parliamentarians and congressmen. It is an evaluative question. ### The validity test Was it properly enacted? Did it pass through all the proper processes? Vetoed by the president? Given royal assent? Recognised as law by courts and lawyers? Properly enforced? Parliament enacts and the King assents — it's a law. It passes both houses (increasingly rare in the US given the filibuster) — it's valid. An executive order is valid at least as long as that president is around. **These are factual questions about whether criteria are met.** ### The enforcement point (an internal positivist worry) If a law is **persistently not enforced**, it becomes very difficult to apply at all, because application starts to look selective or arbitrary. That undermines not just that law but the whole system, sapping public trust and confidence. **Consequence:** having lots of pointless laws on the statute books is *not* harmless. It contributes to the sense that law is a vast jungle full of trees nobody has ever seen and nobody cares about, which have no effect at all — and that weakens trust in the system overall. *(Compare Lecture 1 on the British tax code: complexity and non-enforcement both corrode authority.)* ### The lineage | Thinker | Contribution | |---|---| | **Thomas Hobbes** (1588-1679), *Leviathan* | Law is a **sovereign command**, grounded in the deal the governed make with government: the state gets a sole monopoly on coercion, violence, and enforcement, so that life is livable and we don't descend into *bellum omnium contra omnes*, the war of all against all | | **Jeremy Bentham** (utilitarian; J. S. [[Mill]]'s godfather) | Natural rights are **"nonsense upon stilts," "imprescriptible nonsense."** Law is what is commanded by the due authority, and what we aim at in law is **utility**, not some state of natural flourishing | | **H. L. A. Hart** | See Lecture 1: validity as a matter of systemic recognition; the internal point of view | | **Joseph Raz** | Major 20th-century contributor to these debates | This is probably the dominant view in most law faculties across the West. --- ## 5. Where the two traditions actually collide | Question | Natural law | Positivism | |---|---|---| | What makes something law? | Its ordering of society by reason toward the common good | Its pedigree — enactment by a recognised authority through recognised procedures | | Is an unjust law a law? | No — *lex iniusta non est lex* | Yes, and saying otherwise costs us the ability to describe what went wrong | | Where does law's authority come from? | Principles transcending all legal systems, grounded in what we are | The system itself, and the acceptance of those inside it | | What settles a dispute about content? | Reason, applied to basic goods | Nothing internal to law; that's the moral philosopher's job | | Who speaks for it in *Antigone*? | Antigone | Creon | **And note the shared ground:** both sides agree that **selective, arbitrary, or unenforced application destroys law's authority.** Creon argues it from the positivist side; the positivist enforcement worry restates it; the natural lawyer's promulgation requirement (Aquinas) is the same intuition in a different key. --- ## 6. Where this is going - **Lectures 3-4** complete the classical half: Plato, Aristotle, and Cicero on law; then late antiquity and the Middle Ages — the influence of Christianity on European legal traditions through Aquinas and medieval jurisprudence. - **Lectures 5-8** turn to contemporary approaches to legal positivism. --- ## 7. Vocabulary - ***agrapha nomima*** — unwritten ordinances (Antigone's higher law) - ***dikaiosyne*** — justice - ***jus cogens*** — compelling law; peremptory norms no treaty may override - ***ordinatio*** — ordinance/ordination; Aquinas' term for law as that which straightens society toward flourishing - **Promulgation** — the requirement that law be publicly known or accessible - ***nomos ho panton basileus*** — custom is king of all (Herodotus' conclusion, contested here) - **Epistemology** — from *episteme*, knowledge; the study of the relation between knower and known - ***bellum omnium contra omnes*** — the war of all against all (Hobbes) - **New natural law** — the post-Finnis school: Finnis, Grisez, Boyle, George --- ### Minor points worth checking before repeating them - Finnis' full seven basic goods are **life, knowledge, play, aesthetic experience, sociability (friendship), practical reasonableness, and religion** — the last two are the load-bearing and most contested ones, and are worth knowing since the lecture only samples the list. - *Kreon* in Greek is closer to "ruler" or "lord" than "powerful." - Bentham was Mill's godfather informally rather than in any formal sense — he was James Mill's close associate and J. S. Mill's mentor. --- Back to: [[PA Philosophy of Law]] Previous Lecture: [[What is Law]] Next Lecture: [[Classical Natural Law]]