Monday, September 07, 2015

Following the law

Apparently the Kentucky judge who sentenced Kim Davis to do jail time for refusing to issue marriage licenses  is not entirely sympathetic to same-sex marriage. Nonetheless, he has faithfully adhered to one of the cornerstone principles of our law: "Dura lex sed lex." (The law may be harsh but it is the law.) This principle goes back at least as far as the legal theorist Burchard a thousand years ago, and possibly even earlier to Socrates.

When I made this observation on Facebook a few days ago, a friend commented as follows:  
"Antigone had a different idea.  Also Thoreau.  Also Gandhi.  Also Martin Luther King."

In fact, examples noted constitute a weighty challenge. First, I offer a general comment; then in the following paragraph I address the question of Sophocles' Antigone, the first major landmark in the tradition of resistance. In my view the precept Dura Lex Sed Lex makes no special claim for the morality of the existing body of laws. It simply asserts that this is the way things work. It may well be that we should oppose some particular law as unjust, even though pro tem it remains in force. Or the comment could be more general (the Latin is ambiguous): law is a body of constraints that is inimical to the flourishing of free spirits, but that is the price we pay for affirming the principle of the rule of law.

  • In Sophocles' play, Creon, the ruler of Thebes, was justified in issuing the edict which deprived funeral rites to Polyneices, who had led a foreign army to lay siege to his own city. Creon, as head of the state, viewed exemplary punishment as appropriate. For her part, Antigone, the sister of the deceased rebel. had a right to assert that in defying Creon's edict she was loyal to an unwritten law which had a higher sanction. "The unwritten and unfailing laws of the gods" must override Creon's pronouncement, which is merely the utterance of a human ruler. The laws of Antigone "live forever, were not born today or yesterday, and no-one knows whence they sprang." As Victor Ehrenberg remarks: "[t]hese famous words, full of emotion and belief, clearly indicate something that is essential, fundamental and universal." Perhaps so. But since the laws Antigone appeals to are unwritten, how can we know that her citation is correct and her interpretation is valid? Based on Mesopotamian examples, and compilations of their own, the Greeks were perfectly familiar with written law, where the text is written down and may be consulted. Not here. Although she appeals to the priests and to immemorial tradition, at base Antigone is simply saying "trust me." Later, under the Stoics and others, the Greeks sought to elaborate something approximating international law. Yet even today this concept of an overarching law that can supersede the laws of nations remains controversial.

    Reflection suggests a modification of these observations about Antigone's assertions.  In the Greek text she does not use the common word for law, nomos, but nomima, observances, so that she is referring to the age-old deposit of custom or tradition, and not to an alternative system of law which can be invoked to ride herd over the transient enactments of Creon.  Her assertion then may be regarded as conservative. the application of her conscience, far from being bold and revolutionary, is in obeisance to tradition.  And tradition can be just as oppressive if not more so, than legal enactments in the proper sense.  Still, Antigone's arguments may have given impetus to a later tradition of defiance of laws perceived as unjust in the name of individual conscience.  

    Yet there is another, more sobering consideration.  Let us suppose that the confrontation with Creon had gone differently.  In this rewriting Antigone simply says that it is duty to her family that causes here to bury her slain brother.  To this assertion Creon replies: "I am sorry, my dear, but this cannot be allowed because I must adhere to the Unwritten Law, which stipulates that the preservation of the state is the supreme good.  As even barbarians in Italy recognize, "Salus populi suprema lex est."  It is for this high and unanswerable imperative that you are condemned."  In other words, tyrants can invoke the Unwritten Law principle to justify their arbitrary actions.

    The expression "agrapta nomima," unwritten stipulations, occurs in other texts of the period, and a fuller examination, not offered here, would suggest further nuances.


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