Category: Natural Law

Anno Domini Dies Unus, In Mortem; In Lucem

The Duality of Life; The Dichotomy of Existence.

“Life is warfare and a journey far from home. Then what can guide us? Only philosophy.” (Meditations, V. II, Aurelius, Marcus, 167 A.D.)

Birthed within all human flows the essence of natural law, “Thou shall not kill.” (Moses, The Ten Commandments); so too, is the knowledge of legal positivism such as self-defense laws contained within the child. Inherent from the onset in thought of the human child is deeply a rooted moral character, as well as the ability for qualitative and quantitative analysis in the moment. Therefore, to the child who does not want to hurt his neighbor for it against the essence of the natural law to a child sees the nature of law morally right to hit his neighbor where the child feels justified in protection. “I only got into that fight at school because Chad started it.” To the mind of the child, the morally correct thing to do in that situation was to fight for protection in the form of self-defense. Though it against the child’s deeply rooted moral code to not hurt other children, so too is deeply rooted scientific analytical reasoning for a given situation, and what are morals to the threatened child? Therefore, the child learns it is not always morally wrong to hit other children, but still deeply rooted within the heart of the character the child knows it is always morally wrong to hit other children. So, the dichotomy of what the child knows and what the child learns as law are in conflicting opposition.

The country of Israel, the holy land of the first monotheistic religion, has a two-year military mandate on service for all qualified citizens upon their eighteenth birthday. The devote child of Abraham for eighteen years is now faced with being sent to war to kill for that very nation. This is no different than the stories of young King Josiah going off to war against the invading Babylonians, except the child has grown up in strict observance to the Laws of Moses. Now his country asks him to kill for the government now in powers war for the social contract the child was brought into. The child knows that it is morally wrong to hit his neighbor, he learned the pains the soul itself suffers at the separation between mankind. The child has also learned of all the horrendous atrocities of war that gives reason to sacrifice in the country given to Abraham for the people of Israel for all of time. The child knows one thing, has learned another, what does the child hold as his law in order to survive the war. For to not kill, is to die, and to kill, is an unspeakable burden for the soul, one that often shatters the bearer of the weight. What law does the child hold sacred enduring the immolation of war to survive? Does the soldier pray to the heavens for Divine intervention, or does the child use his refined tactical scientific analytical reason for refined military intentions?

The term jurisprudence is derived from the Latin phrase juris prudential, meaning the philosophy of law or scientific study of the law. Contained within the philosophy of law there are many different properties where the most frequent form of jurisprudence seeking to analyze and criticize bodies of law. Other facets of jurisprudence compare and contrast law with other fields of knowledge such as religion, or social sciences, and to reveal the historical basis of a particular legal or moral concept. The most abstract feature of jurisprudence is directed at finding the philosophical answer to esoteric questions, such as ‘What is law?’ or ‘How to judge a case?” Here, in the most abstract aspect of jurisprudence is in question with the soldier trying to judge what is law, in this particular case.

In legal philosophy there is an established dichotomy over the appropriate basis of law between the natural theory of law and the legal positivist thought. Naturalists maintain that moral philosophy, religion, human reason and individual conscience are integrate parts of the law. The theory of natural law insist that the rules enacted by government are not the only sources of law, but rather the main source of law is handed down by the divine. Positivists, on the other hand, support the theory that there is no correlation between law of man and morality and that the only foundations of law are rules that have been expressly enacted by the governmental or court of law. For hundreds of years, jurisprudence has been dominated by this debate, which stems from the premise that our legal system generate rights and obligations that are distinctively legal. The question at issue between diametric oppositions is how these rights and obligations are determined where the proponent of naturalism maintains that moral facts must play a part in determining their content while positivists say that their content is determined exclusively by social facts. Naturalism preserves that it is fundamental that the law is reflective of eternal principles of morality that exist independent of governmental recognition whereas positivism proposes that the law must be restricted to the written regulations promulgated or acknowledged by the governing authority.

Does the classical dichotomy of legal philosophy offered in Naturalism and Positivism offer any valid foundation in future jurisprudential analysis, if not, is there a more viable option moving forward addressing legal issues for the soldier? To start at the very core of the problem one must ask what is Naturalism and the natural theory of law and what is Positivism and the legal positivist theory of law?

As Saint Augustine put it in his natural theory of law, lex injustia non est lex, legal systems have a purpose to secure justice for the benefit of society in that “law has as its purpose the common good of the community.” Natural law is bound with the conception of the dignity of man ever since the early stages of social community. Saint Thomas Aquinas goes on to classify natural law into four categories of law; human, divine, eternal, and natural law. He defines human law as, “an ordinance of reason for the common good promulgated by him who has the care of the community.” ; natural law as the component of eternal law that applies to human beings, it is God’s plan for us; divine law as the part of eternal law that God reveals to us human beings via Scripture.

The fundamental thesis forwarded by Aquinas is that natural law is the participation in the eternal law. Eternal law, for Aquinas, is the plan by which all creation is ordered, and natural law is the way that human beings participate in the eternal law. Aquinas defines law as, “a rule of action put into place by one who has care of the community; and as God has care of the entire universe, God’s choosing to bring into existence beings who can act freely and in accordance with principles of reason is enough to justify our thinking of those principles of reason as law. ” Proponents of the philosophy naturalism believe any law which conflicts or is inconsistent with either natural law or divine law is not really law at all. Thus, not only is there no moral obligation to obey it, but there is no legal obligation to obey it either.

The thesis of Aquinas’s natural law theory that comes to the fore is that the natural law constitutes the basic principles of practical rationality for human beings, and has this status by nature. The notion that the natural law constitutes the basic principles of practical rationality implies, both that the precepts of the natural law are universally binding by nature and that the precepts of the natural law are universally knowable by nature. These notions of the natural law are binding by nature in that no being could share our human nature yet fail to be bound by the precepts of the natural law. This is so because these precepts direct us toward the good as such and various particular goods. The good and goods provide reasons for us rational beings to act and to pursue the good and these particular goods. As good is what is perfective of us given the natures that we have the good and these various goods have their status as such naturally. It is sufficient for certain things to be good that we have the natures that we have; it is in virtue of our common human nature that the good for us is what it is. The precepts of the natural law are also knowable by nature. All human beings possess a basic knowledge of the principles of the natural law. This knowledge is exhibited in our intrinsic directedness toward the various goods that the natural law enjoins us to pursue, and we can make this implicit awareness explicit and propositional through reflection on practice. Aquinas takes it that there is a core of practical knowledge that all human beings have, even if the implications of that knowledge can be hard to work out or the efficacy of that knowledge can be thwarted by strong emotion or evil dispositions. St. Aquinas holds that human beings intrinsically know by inclination a variety of things that qualify as “good” and thus to be pursued such as life, procreation, knowledge, society, and reasonable conduct. Contained within this theory is that the individual is able to reason from these principles about goods to guidelines about how these goods are to be pursued.

St. Aquinas does not obviously identify some master principle that one can use to determine whether an act is intrinsically flawed. An act might be flawed through the circumstances: while one is bound to profess one’s belief in God, there are certain circumstances in which it is inappropriate to do so. An act might be flawed merely through its intention to direct oneself against a good such as murder or lying , is always to act in an unfitting way. Aquinas has no illusions, as if for every situation in which there is a correct choice to be made there will be a rule that covers the situation. But he denies that this means that there are no principles of right conduct that hold everywhere and always, and some even absolutely. On Aquinas’s view, killing of the innocent is always wrong, as is lying, adultery and that they are always wrong is a matter of natural law.

Thus, the natural theory of law has evolved from this view which holds that the natural law is intrinsically given by God and by nature is authoritative over all human beings. Naturalism is the set of truths about morality and justice which are the legal rules that we must follow in order to lead a good or flourishing life. We can know what these principles are by means of unaided human reason. Immoral behavior against the human conscious violate natural law hence, immoral behavior is “unnatural” in the sense of “contrary to our function as a society. Whereas whereas virtuous behavior is “natural”. Therefore, natural law is the good for human beings are happiness, the living of a flourishing life. Happiness or flourishing consists in the fulfillment of our distinctive nature, what we “by nature” do best. That involves the development and exercise of our capacities for rationality where the moral virtues such as courage, justice, benevolence, temperance are character traits that help us fulfill our true nature.

Diametrically opposed to the natural theory of law is legal positivism where whether a certain rule is a law creating a legal obligation to comply with, depends on the promulgating source. The thesis comprising the foundation of legal positivism is the separability thesis. The separability thesis asserts that law and morality are conceptually distinct. Valid laws are simply rules that come from certain people such as city councils, state, or national legislators in accordance with certain procedures that the society enforces. As a doctrine, positivism maintains the basis for knowledge and thought should depend on the scientific method.

Legal positivism has a long history in ancient political philosophy and the term itself introduced in mediaeval legal and political thought. The modern doctrine most important roots lie in the political philosophies of Hobbes and Hume, and due to Jeremy Bentham. The theory emphasis is on legislative institutions replaced by a focus on law applying institutions such as courts, and its insistence of the role of coercive force gave way to theories emphasizing the systematic and normative character of law. Every human society has some form of social order. As way of encouraging approved behavior, deterring disapproved behavior, and resolving disputes about that behavior. For Bentham, the theory of law is a phenomenon of societies with a sovereign: a determinate person or group who have supreme and absolute de facto power. They are obeyed by all or most others but do not themselves similarly obey anyone else. The laws in that society are a subset of the sovereign’s general orders that apply to classes of actions and people and that are backed up by threat of force or sanction. This theory identifies the existence of law with patterns of legislative and judiciary command that can be ascertained without considering whether the sovereign has a moral right to rule. Legal positivism maintains all laws as having a single form, imposing obligations on their subjects, though not on the sovereign itself, where ultimate legislative power may be self-limiting or limited externally by what public opinion will tolerate.

Legal Positivism holds that the legal theory must ultimately be rooted in some account of the political system. In a complex society there may be no one who has all the attributes of sovereignty for sovereign authority may be divided among separate branches of government and may itself be limited by law. The legal positivism theory of law maintains the authority of law is social. The ultimate measurement of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists because it is actually practiced which is used to guide conduct. The Positivist maintains law ultimately rests on the customs of society, customs about who shall have the authority to decide disputes, what they shall treat as binding reasons for decision as sources of law and how laws may be changed. The source determining rule of recognition specifies the ultimate criteria of validity in the legal system. It exists only because it is practiced by officials, and it is not only that the recognition rule best explains their practice, it is the rule to which they actually appeal in arguments about what standards they are bound to apply. Thus, for the legal positivist the legal system is rule based all the way down, but at its root is a social norm that has the kind of normative force that customs have. It is the habituation of behavior regarding which officials take “the internal point of view:” they use it as a standard for guiding and evaluating their own and others’ behavior, and this use is displayed in their conduct and speech, including the resort to various forms of social pressure to support the rule and the ready application of normative terms such as “duty” and “obligation” when invoking it. The legal theory of positivism then has its ultimate basis in the behaviors and attitudes of its governing officials. Thus, necessary and sufficient conditions for the existence of a legal system are that those rules of behavior which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and its rules of recognition specifying the criteria of legal validity must be effectively accepted as common public standards of official behavior by its officials.

The theory of legal positivism is a distinctive form of political order where whether it is necessary or even useful depends entirely on its content and context. Societies without law may be perfectly adapted to their environments, missing nothing. No legal positivist argues that the systemic validity of law establishes its moral validity, such as, that it should be obeyed by subjects or applied by judges. Bentham and Austin, as utilitarians, hold that such questions always turn on the consequences, and both acknowledge that disobedience is therefore sometimes fully justified. Kelsen insists that “The science of law does not prescribe that one ought to obey the commands of the creator of the constitution.”

Looking forward for a solution for a more practical legal analysis moving forward it is necessary to view both the positive and the negative behind the driving jurisprudential forces of the past in natural law and legal positivism in viewing a solution for the future. Emmanuel Kant, the legal catalyst of the past, linking the past legal theories of the Roman Catholic Church to the emerging ever-changing social legal positivism theories of the times in Europe, so too here, there needs to be catalyst. A link from to the past to the present, moving forward in the future in the prevailing legal philosophy so as to adequately addresses the pressing needs of the ever- evolving future.

Anno Domini, Tres Dies

What the pros, what are the problems with this duality in legal philosophy? What have been benefits, what have been the drawbacks in the past? What are the current benefits, drawbacks of the dualistic approach to legal thinking?

If Aquinas’s view is paradigmatic of the natural law position, and these two theses, that from the God’s-eye point of view, it is law through its place in the scheme of divine providence, and from the human’s-eye point of view, it constitutes a set of naturally binding and knowable precepts of practical reason are the basic features of the natural law as Aquinas understands it, then it follows that paradigmatic natural law theory is incompatible with several views in metaphysics and moral philosophy. On the side of metaphysics, it is clear that the natural law view is incompatible with atheism: one cannot have a theory of divine providence without a divine being. It is also clear that the paradigmatic natural law view rules out a deism on which there is a divine being but that divine being has no interest in human matters. Nor can one be an agnostic while affirming the paradigmatic natural law view for agnosticism is the refusal to commit either to God’s existence or nonexistence, whereas the paradigmatic natural law view involves a commitment to God’s existence. On the side of moral philosophy, it is clear that the natural law view is incompatible with a nihilism about value, that is, the rejection of the existence of values. It is also incompatible with a wholesale skepticism about value, for the natural law view commits one to holding that certain claims about the good are in fact knowable, indeed, knowable by all.

Objectively speaking, natural law, as a body of rules of action prescribed by an authority superior to the state. These rules variously are variously derived from divine commandment; from the nature of humankind; from abstract reason; or from long experience of mankind in community. Natural law is not a harsh code thrust upon other people: rather, it is an ethical knowledge, innate perhaps, but made more clearly known to us through the operation of right reason. However, what is regarded as rightful by one group of people within a community, can be regarded as wrongful by another group. Human efforts are often aimed with the best intentions, in the wrong direction. Wrong in this sense: against human nature, for nature cannot be neglected without harming the human race. As a society we have to determine when our ethical laws accord with nature and when they counteract nature. Yet to guide the sovereign; the chief of state; the legislator; the public prosecutor; the judge when, in effect there endures the natural law.

Here we turn to an historical example and to the judgment of a leading American political and religious writer who endeavored to reconcile the claims of authority and the claims of freedom. The ‘higher law’ controversy of 1850 and to Orestes Brownson, the Catholic scholar and polemicist. In March 1850, on the floor of the United States Senate, William Henry Seward made his famous declaration that there exists ‘a higher law than the Constitution.’ He was referring to the Fugitive Slave Law and the Supreme Court. In January 1851, Brownson published his review-essay entitled ‘The Higher Law,’ in which he refuted the claim of Seward, the Abolitionists, and the Free- Soilers to transcend the Constitution by appealing to a moral ‘higher law’ during debate on the Fugitive Slave Bill.

Brownson agreed with Seward that there is a higher law than the Constitution. The law of God is supreme, and overrides all human enactments, and every human enactment incompatible with it is null and void from the beginning, and cannot be obeyed with a good conscience, for ‘we must obey God rather than men.’ But the concession of the fact of a higher law than the Constitution does not of itself justify the appeal to it against the Constitution, either by Mr. Seward or the opponents of the Fugitive Slave Law. No civil government can exist, none is conceivable even, when every individual is free to disobey its orders whenever they do not happen to square with his private convictions of what is the law of God. The Church, Brownson writes, is the authoritative interpreter of the divine law. He reminds his readers that the state is ordained of God; but the state is not the supreme and infallible organ of God’s will on earth. Here we have nothing to which they can appeal from the action of government but their private interpretation of the law of God, that is to say, their own private judgment. To appeal from government to private judgment is to place private judgment above public authority, the individual above the state is incompatible with the existence of government, and therefore, since government is a divine ordinance, absolutely forbidden by the law of God, that very higher law invoked to justify resistance to civil enactments.

No man can ever be justifiable in resisting the civil law under the pretense that it is repugnant to the Divine law, when he has only his private judgment, or, what is the same thing, his private interpretation of the Sacred Scriptures, to tell him what the Divine law is on the point in question, because the principle on which he would act in doing so would be counterintuitive to the very foundation of government, and therefore in contravention of the ordinance, therefore of the law, of God. However, the natural law and the American civil law are not ordinarily at swords’ points. Large elements of natural law entered into the common law of England and therefore into the common law of the United States; over the centuries; and the Roman law, so eminent in the science of jurisprudence, expresses the natural law enunciated by the Roman jurisconsults. It simply will not do to maintain that private interpretation of natural law should be the means by which conflicting claims are settled. Rather, natural law ought to help form the judgments of the persons who are lawmakers, whether emperors, kings, ecclesiastics, aristocratic republicans, or representatives of a democracy. The civil law should be shaped in conformity to the natural law which originated, in Cicero’s words, ‘before any written law existed or any state had been established.’ It does not follow that judges should be permitted to push aside the Constitution, or statutory laws in order to substitute their private interpretations of what the law of nature declares. To give the judiciary such power would be to establish what might be called a domination of judges, supplanting the constitution.

The advantage of a positivist approach to the social sciences is that its grounds anthropology, sociology, political science and so on upon a hard and definite foundation of empirically testable data and makes theories out of this data from which absolute laws of social behavior may be attained. A chief strength then of a positivistic approach, is that it brings to the social sciences the desire to emulate the excellence of the natural sciences in respect of their rigorous experimentation, precisely stated hypotheses, definite laws, and thus prediction of behavior. By approaching its investigations thus, social scientists attain a high level of accuracy in their results and in their predictions, and thus come closer to a total description of the behavior of social phenomenon. In approaching the social sciences from a positivist position, social scientists are able to cut away from existing ‘knowledge’ many prejudices, suppositions, superstitions and other non-scientific opinions that have gathered about these social phenomena. Positivism, by declaring valid only those things which conform to its vigorous standards of investigation, strips social phenomenon of their perceived nature and reveals them as they really are.

The allegiance of the social sciences to the natural sciences, through a shared conviction in the positivist philosophy, means that the social sciences can constantly draw upon the fund of new empirical material daily unearthed by these natural sciences. If the social sciences have an exchange of knowledge between themselves and the natural sciences, then every refinement of experimental method, theory, or analysis achieved by the natural sciences may be immediately seized upon and utilized by the social sciences also. Vice-versa, this interchange allows the social sciences to more freely disseminate their discoveries within the world of the natural sciences. Moreover, by sharing a positivist philosophy with the natural sciences, the social sciences may draw from its authority in the presentation of their results to the wider scientific and academic community.

Advantage: Quantitative Approach; Positivism relies on quantitative data that positivists believe is more reliable than qualitative research. Quantitative research is more “scientific” in its methods than qualitative research and thus more trustworthy. In research, quantitative data provides objective information that researchers can use to make scientific assumptions. Positivism follows a well-defined structure during studies and discussions. Positivists believe that since there are set laws and rules followed, there will be minimum room for error. This structure also gives little room for variance and drastic variable changes, thus making the study more accurate when it comes to experiments and applications as it tries to follow specific rules using objective mathematical and scientific tools.

Disadvantage: Human Behavior Positivism believes that objective inferences and conclusions can be reached as long as the person doing the observation is objective and disregards her emotions. However, human behavior naturally comes with emotional responses. Although positivism encourages researchers to disregard human emotion and behavior, there is no guarantee that this will occur at all times during studies. The positivist does not derive conclusions from a subjective approach and does not let feelings and emotions cloud his judgment because these things are in the person’s consciousness. Disadvantage: Inflexibility, some scholars believe that since positivists believe everything can be measured and calculated, they tend to be inflexible. Positivists see things as they are and tend to disregard unexplained phenomena.

This process may ultimately detach legal concepts from their moral analogs thus, legal “murder” may require no intention to kill, legal “fault” no moral blameworthiness, an “equitable” remedy may be manifestly unfair. Bearing in mind these complications, however, there undeniably remains a great deal of moral reasoning in adjudication. Courts are often called on to decide what would reasonable, fair, just, cruel, by explicit or implicit requirement of statute or common law, or because this is the only proper or intelligible way to decide. When the law itself licenses such reasoning should we understand it, with the inclusive positivist, to incorporate moral standards, or, as per the views of their rival, the exclusive positivist, only to make reference to moral principles?

Another aspect of Hart’s theory is the analysis of the role of judges. Hart holds that even though the majority of rules being applied will be clear, there will be cases where the rule becomes uncertain due to the ‘open texture’ of words, e.g. the definition of ‘vehicle’ is open direction, but don’t require a particular decision like a rule. rather it is merely a functional argument for an effective order that regulates society advantage of this is that the “minimum content” is more general than the natural law theory and can be applied across more legal systems therefore giving a further account of ‘what the law is’ in comparison to natural law. by accepted rules they must use their discretion, looking to the purpose and policy where a definitive list is not supplied .Hart states that where a judge cannot determine a case considerations of the rule judges being able to make decisions based on policy and not law, demonstrating that judges do not become lawmakers, but rather exercise legal principles founded by law in deciding hard or unclear cases; principles being laws that give support for an argument in a certain. Through the use of case examples, Dworkin argues against For example in Riggs v Palmer, the court applied the principle ‘no man may profit from his wrong’ to find that a murder could not inherit under the will of his victim even though the law ‘gap fillers’ in the law, they are being applied to prevent injustices. an advantage over natural law theories ability to determine what the law is. The above demonstrates a disadvantage of Hart’s theory due to the fact that if the law is a system of rules identified by the foundational secondary rule, the rule of recognition does not the strong sense, being able to decide cases without being bound by the law recognize these principles that form a significant part of the law. Also, Hart holds that when there are such hard cases, the judge may either make new laws or extend a current precedent to cover the factual scenario. This choice allows Dworkin to argue that the decision is based on what the judge sees as best for society and not legal determinates. Dworkin states that such a role is for the legislator and opposes that judges hold discretion in

Another disadvantage of Hart’s theory arises when political groups use positive law for oppressive reasons resulting in reduced fidelity of the law. Using the grudge cases of Nazi Germany as an example; where people made use of oppressive laws to resolve personal grudges, under Hart’s theory no matter how immoral the law was, as long as the law was validly made it is still law. Although Hart states that the law may be set aside through retrospective legislation, Hart’s the advantage of Hart’s theory in comparison to Austin’s is that by internalizing obligations as opposed to the command theory, it better describes what the law is as it accounts for the complex structures in the law that fall outside Austin’s theory of coercive obligation. Hart’s and his ‘minimum content of natural law’ better explains what the law is compared to natural law theories that have only recently started coming back into favor after the rise of segregate legal obligation as the duty to obey laws from all other obligations was wrong argument does not progress the worth of fidelity to the law. Finally, it is evident that Hart’s theory of the law as a system of rules fails to recognize legal principles as law, which results in disturbing Hart’s tenet that judges may exercise discretion in the strong sense when faced with hard or unclear cases. Finally, Hart and legal positivism do not promote the worth of fidelity in the law.

If law were to incorporate the moral standards to which it refers it would no longer be able to play this mediating role; identifying the law would require identifying the reasons underlying it. This is because the nature of law is partly determined by its role in giving practical guidance there is theoretical reason for stopping at source-based considerations. The argument challenges an underlying idea of inclusive positivism, what we might call the Midas Principle. “Just as everything King Midas touched turned into gold, everything to which law refers becomes law”. Kelsen thought that it followed from this principle that it is possible for the legal order, by obliging the law creating organs to respect or apply certain moral norms or political principles or opinions of experts to transform these norms, principles, or opinions into legal norms, and thus into sources of law. Though he regarded this transformation as effected by a sort of tacit legislation. If sound, the Midas Principle holds in general and not only with respect to morality, as Kelsen makes clear. A contrary indication is that it is not subject to the rules of change in a legal system neither courts nor legislators can repeal or amend the law of commutativity.

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.