Natural Law Theory Versus Legal Positivism: Comparative Analysis

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Introduction

Sophocles’ Antigone (written in 441BC) is widely regarded to be one of the finest Greek tragedies of all time. Telling the story of Antigone’s defiance of a law set forth by her uncle Creon – the King of Thebes – in which he forbids the burial of her brother, the most significant theme of the play is arguably that of obedience or disobedience to law. Antigone commits civil disobedience on the basis that the law of Zeus overrides any law set forth by man. As such, Antigone has been widely referenced in the debate between the supremacy of natural law versus legal positivism. Lon L. Fuller’s procedural natural law theory can be used to critically analyse whether Antigone was obligated to obey or disobey Creon’s law through his conceptions of the internal morality of law and eight procedural desiderata. Antigone’s themes of civil disobedience and religious freedom also remain relevant in contemporary Australia, as can be seen in the debate around anti-discrimination laws and same-sex marriage.

Fuller’s theory of ‘internal morality of law’

Lon L. Fuller was a prominent legal philosopher in the 20th-century who propounded a secular and procedural form of natural law theory. Fuller loosely defines law as ‘the purposive human enterprise of subjecting human conduct to the guidance and control of general rules.’ A legal system that provides rules that will help humans keep peace, deal justly with one another, and enable them to collaborate productively is the foundation of morality. His most basic assumption was that law is morally good; without law, morality would be impossible. By incorporating moral requirements into the criteria for valid law, Fuller proposed it would be possible to facilitate the practice of disobedience of grossly unfair and morally wrong laws. His starting point was to give ‘coherent meaning to the moral obligation of fidelity to law.’

Fuller categorises ‘morality’ in two different ways: morality of aspiration (an aspirational norm of human conduct which would promote the best interests of humanity) versus morality of duty (the rules followed by humans at any given time or place so as to make sure that society functions smoothly); and external morality (substantive rules of law) versus internal morality of law (the procedural aspect of lawmaking). Internal morality of law is classed as a morality of aspiration as supposed to a morality of duty. Fuller is concerned only on the procedural element of the morality of law, not with the substantive aims of laws ‘…on such topics as polygamy, the study of Marx, the worship of God, the progressive income tax or the subjugation of women.’

Through the parable of Rex, a king who attempts to rule but continues to fail to do so in any meaningful way, Fuller elucidates the ‘internal morality of law’ as eight procedural desiderata. He states that law must be 1) general; 2) promulgated; 3) prospective; 4) clear; 5) not contradictory; 6) not impossible; 7) temporally enduring; and 8) congruent with official action. These are considered moral principles in and of themselves. Fuller recognises that perfect realisation of all eight desiderata is impossible – hence internal morality of law being a morality of aspiration – but stresses that law cannot be said to exist where there is a total failure in any one desiderata, or a sweeping and dire deterioration in legality. When there is law, as understood through the eight procedural desiderata, citizens have a prima facie moral obligation to obey the law.

The legal subject in Fuller’s theory is presupposed to be ‘a responsible agent, capable of following rules, and answerable for his defaults whose dignity is affronted by departures from the internal morality of law’. Where officials respect and pass laws in accordance with the eight desiderata listed above, those laws are able to influence the practical reasoning of citizens. Citizens feel obligated to obey the law, even when the government pursues policy with which individual citizens might disagree. Fuller expresses this as a kind of reciprocity between the government and the citizen. While the citizen has a prima facie moral obligation to obey the law, the lawmaker also has a reciprocal obligation to make laws which can be obeyed. When the bond of reciprocity is completely broken, there is no basis for which a citizen owes a duty to obey the lawmakers laws.

Fuller-Hart Debate

Fuller is perhaps most well-known for his 1958 debate with H.L.A Hart, which demonstrated the divide between natural law versus positivist legal theory regarding the role of morality in law. Fuller argued that law and morality are intrinsically linked and that the ‘authority of law is derived from its consistency with morality.’ Hart held the view that law and morality are mutually exclusive. As such, he propounded that the focus should be on what the law is by looking at what the says, rather than what it ought to be or what one wishes it said. Hart’s most significant critique of Fuller’s internal morality of law is that laws that meet the requirements of the internal morality of law can still be substantively immoral.

Fuller’s writing suggested that where a law meets the requirement of internal morality of law, it would likely result in the substantive justice of laws as well. However, he does recognise that a law that is followable, in accordance with internal morality of law, can still be morally bad. This is on the basis that internal and external moralities only overlap, they do not correspond. Fuller is not suggesting that all laws are good, simply that law is good (so long as it follows all procedural requirements).

Antigone

Sophocles’s Antigone is set in Thebes, following the civil war in which brothers Eteocles and Polynices died fighting each other for the throne. Creon, the new ruler of Thebes, decided that Polynices was a traitor against the city and issued an edict forbidding anyone to perform burial rites for him. The play begins with Antigone burying Polynices’ body, in defiance of Creon’s edict. When she is caught, Creon and Antigone engage in a heated debate in which Antigone defends her right to bury her brother in line with Ancient Greek religion and custom, and Creon attempting to enforce his law as dominant over that of the gods.

Civil Obedience vs Disobedience

A significant theme in Antigone is whether a citizen has a right to disobey a law they believe is immoral. Antigone is often considered the quintessential example of civil disobedience. This is largely shown through Antigone’s defiance of Creon’s law in which he forbids her brother Polynices to be granted burial rights. When a citizen encounters a law made by the State, which they perceive to be unjust or immoral, they face a moral quandary: to obey the law of the State and act in a way which they believe to be immoral, or to act in a way they believe to be moral and face punishment by the State. In Sophocles’ play, Antigone expressed that she had to do what she felt was right under the law of the gods and her duty to her brother, despite the fact Creon had made the act of burying Polynices punishable by death.

Fuller’s Theory of ‘Internal Morality of Law’ as Applied to Antigone

Fuller’s theory is particularly interesting to apply to Antigone because while he is identified as a natural law theorist, he does not subscribe to the traditional natural law belief that certain legal principles can be traced back to a higher being and/or that law, in order to be regarded as legitimate law, must correspond with certain principles or values. Instead, he subscribes to a theory of procedural morality over substantive morality. So long as the procedural elements are fulfilled, there is a moral obligation to obey the law. It is irrelevant whether or not the content of the particular law is actually just or moral. As such, where most natural law theorists would prima facie endorse Antigone’s disobedience on the basis that she was following the law of the gods (a ‘higher law’), Fuller requires a greater analysis of Creon’s proclamation before coming to any conclusions.

The application of Fuller’s theory of ‘internal morality of law’ to Antigone starts with an analysis of whether Creon’s proclamation satisfies the eight procedural desiderata. The canon of promulgation is most clearly satisfied as a ‘city-wide proclamation’ was made in which Creon ‘[forbid] the city to dignify [Polynices] with burial’, and Antigone herself stated she was well aware of the decree as it was ‘public’ and ‘unavoid[able].’ The law was also prospective in that it did not criminalise Polynices’ burial after the fact; clear; internally consistent; not impossible; temporally enduring; and congruent with official action. The problem arises with the desiderata of generality.

Creon fails to fulfil the criteria of generality, by passing an edict that is addressed only to Polynices, and not to persons or a class of persons generally. In his essay ‘The Implicit Laws of Lawmaking’, Fuller enters into a discussion of ‘private or special’ statutes. Significantly, while he states that ‘private’ statutes, which are directly addressed to particular persons, are generally prohibited, in certain cases they can be innocent and beneficial. The question here then, is whether Creon’s edict against Polynices ‘serve[s] the ends of legality and fairness.’ Arguably, there is no need for Creon to forbid the burial of Polynices in order to achieve fairness under the law. Creon justifies the law on the basis that Polynices committed an act of treason against Thebes and therefore does not deserve the honours of burial. As Ancient Greek religious beliefs require proper burial rites in order for a soul to enter its pace in the underworld, Creon is effectively attempting to punish Polynices even after death. However, there is no real point in punishing Polynices’ further as he is already dead. Further, due to the law’s lack of generality, it would not effectively serve to prevent future acts of treason as it was essentially made on an ad hoc basis. As such, under Fuller’s theory of ‘internal morality’, Antigone prima facie had no moral obligation to obey Creon’s law regarding her brother. By failing to abide by all eight of the procedural desiderata, Creon’s law would be regarded as not law at all.

However, it is important to note the eight desiderata only constitute a target to be aimed at (a morality of aspiration) rather than representing a minimum level that must be attained (a morality of duty). Therefore, a legal system only ceases to exist if every law in the legal system fails to meet the demands of internal morality of law. An individual law can fail to meet the demands of internal morality of law without losing its status of law. Peter Nicholson suggests that this is because it remains part of a system of law that is generally ‘good’.

In the play, Antigone stated that the ban on performing burial rites for her brother was the only case in which she would ever have disobeyed the law of the city. On the assumption that every particular law in the Thebes’ legal system does not ignore one or more of the demands of internal morality of law, Creon’s law can still be a law even though it fails to meet the desiderata of generality. Therefore, under Fuller’s theory, Antigone was morally obligated to obey Creon’s proclamation not to perform burial rights for her brother.

Relevance of Antigone’s themes of obedience to religious freedom and Australia’s same-sex marriage laws

Antigone’s themes of civil disobedience and religious freedom have enduring relevance to contemporary Australia. This can be seen through the discourse surrounding the legalisation of same-sex marriage.

The legalisation of same-sex marriage in Australia through the Marriage Amendment (Definition and Religious Freedoms) Act 2017 (Cth) ignited significant debate over religious freedom to refuse to provide goods or services to individuals on the basis of their sexuality. Despite radical change in legal attitudes toward same-sex marriage, many religions continue to view homosexuality as immoral. It has been argued with the legalisation of same-sex marriage, those with religious convictions against homosexuality will now be forced to choose between obeying the law in Australia and obeying a higher power (i.e. God).

Under current law, religious ministers and religious organisations are exempt from the operation of anti-discrimination laws when it is necessary to do so in order to act in compliance with their religious beliefs. This means that religious ministers are not required under law to marry same-sex couples in a religious ceremony and religious organisations are not required to provide services for same-sex marriages. Religious individuals are not afforded the same protection. Yet individuals, and commercial enterprises without religious purposes, continue to deny services to LGBTQIA+ on the basis that it conflicts with their religious beliefs, even though it involves direct disobedience of anti-discrimination laws.

If, 2500 years after Antigone was written, citizens remain willing to break positive law on the basis of religious conviction, the question remains: how much freedom should people be given to exercise their religious beliefs contrary to state-made law? While religious freedom is protected constitutionally, Professor Carolyn Evans suggests that ‘allowing each individual to determine according to his or her religious convictions which laws they will keep and which they will disregard raises the troubling spectre of a religious diverse society in which each individual is a law unto themselves.’

Conclusion

Sophocles’ Antigone plays an important role of the discourse surrounding civil disobedience and legal theory as a whole. It also remains an excellent example of the divide between natural law theory and legal positivism. Antigone believed Creon’s edict to be unjust and contrary to the higher law of the gods, and therefore felt justified in defying state law. Creon believed that his law was the dominant law because it was set forth by him as the ruler of Thebes. After analysis of Creon’s proclamation through Lon L. Fullers theory of internal morality of law, it can be concluded that Antigone was morally obligated to obey Creon’s law. This is because, although the law itself failed to meet the requirement of generality, the eight desiderata are an aspiration rather than a duty and therefore an invalid individual law can remain valid within the greater legal system so long as the greater legal system complies significantly with the internal morality of law. Finally, Antigone’s theme of civil obedience and disobedience remain relevant in contemporary Australia, as does the debate around natural law and legal positivism. This can be seen in the discourse around same-sex marriage and religious freedom to discriminate against people on the basis of their sexuality.

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