‘Children of a Wiser Day’
According to Greek legend, Polynices, son of Oedipus, fought for the throne of Thebes and was killed. The new king, Creon, decreed that Polynices, as traitor, was neither to be buried nor his death lamented. Antigone, sister of Polynices, defies the edict, buries her brother, is captured, and sentenced to death by Creon. The story is recounted in Sophocles’, (497/5–406/5), play ‘Antigone’, in which she defends her actions in defying Creon’s order:
‘That order did not come from God. Justice,
That dwells with the gods below, knows no such law.
I did not think your edicts strong enough
To overule the unwritten unalterable laws
Of God and heaven, you being only a man.
They are not of yesterday or today, but everlasting.
Though where they come from, none of us can tell.
Guilty of their transgression before God
I cannot be, for any man on earth’.
Creon had forbidden the burial of Antigone’s traitorous brother, Antigone has a sisterly obligation to bury him. Georg Wilhelm Friedrich Hegel, (1770–1881), interpreted this story, not to begin with as a conflict between the individual and the state, but as a conflict between different aspects of Greek ethical life, the conflicting demands on the individual eventually giving rise to individualism. For in this instance the conflict was seemingly unresolvable, between the laws of the gods of the netherworld, that governed the family and were administered by the women, and the laws of the Olympian gods, that governed state power and were administered by the men.
The conflict is seemingly unresolvable, because of Antigone’s appeal to ‘the unwritten unalterable laws, Of God and heaven,… everlasting, Though where they come from, none of us can tell’. Where do laws, in particular the ‘unwritten’ ones, come from, and from where do they derive their justification and legitimacy? Given the restrictions they place upon individual autonomy, these are important questions. Why should we obey the law? (apart from the obvious reason that to do otherwise can result in punishment, if we get caught).
In Plato’s dialogue the ‘Crito’, Socrates, in jail and awaiting his execution, is offered the chance to escape, but instead displays a remarkable obedience to constitutional authority. He introduces the voice of the laws of Athens to Crito, the laws are personified, they speak to him and explain why it would be unjust for him to escape from his cell:
‘Socrates: Then consider the matter in this way: Imagine that I am about to play truant (you may call the proceeding by any name which you like), and the laws and the government come and interrogate me: ‘Tell us, Socrates’, they say; ‘what are you about? are you going by an act of yours to overturn us — the laws and the whole State, as far as in you lies? Do you imagine that a State can subsist and not be overthrown, in which the decisions of law have no power, but are set aside and overthrown by individuals?’ What will be our answer, Crito, to these and the like words? Anyone, and especially a clever rhetorician, will have a good deal to urge about the evil of setting aside the law which requires a sentence to be carried out; and we might reply, ‘Yes; but the State has injured us and given an unjust sentence’. Suppose I say that?
Crito: Very good, Socrates.
Socrates: ‘And was that our agreement with you?’ the law would say, ‘or were you to abide by the sentence of the State?’ And if I were to express astonishment at their saying this, the law would probably add: ‘Answer, Socrates, instead of opening your eyes: you are in the habit of asking and answering questions. Tell us what complaint you have to make against us which justifies you in attempting to destroy us and the State? In the first place did we not bring you into existence? Your father married your mother by our aid and begat you. Say whether you have any objection to urge against those of us who regulate marriage?’ None, I should reply. ‘Or against those of us who regulate the system of nurture and education of children in which you were trained? Were not the laws, who have the charge of this, right in commanding your father to train you in music and gymnastic?’ Right, I should reply. ‘Well, then, since you were brought into the world and nurtured and educated by us, can you deny in the first place that you are our child and slave, as your fathers were before you? And if this is true you are not on equal terms with us; nor can you think that you have a right to do to us what we are doing to you. Would you have any right to strike or revile or do any other evil to a father or to your master, if you had one, when you have been struck or reviled by him, or received some other evil at his hands? — you would not say this? And because we think right to destroy you, do you think that you have any right to destroy us in return, and your country as far as in you lies? And will you, O professor of true virtue, say that you are justified in this? Has a philosopher like you failed to discover that our country is more to be valued and higher and holier far than mother or father or any ancestor, and more to be regarded in the eyes of the gods and of men of understanding? also to be soothed, and gently and reverently entreated when angry, even more than a father, and if not persuaded, obeyed? And when we are punished by her, whether with imprisonment or stripes, the punishment is to be endured in silence; and if she leads us to wounds or death in battle, thither we follow as is right; neither may anyone yield or retreat or leave his rank, but whether in battle or in a court of law, or in any other place, he must do what his city and his country order him; or he must change their view of what is just: and if he may do no violence to his father or mother, much less may he do violence to his country’. What answer shall we make to this, Crito? Do the laws speak truly, or do they not?
Crito: I think that they do’. [Sycophant, you could at least offer some sort of challenge, Crito — ed.]
Socrates is saying that as the laws exist as one entity, to break one would be to break them all, and in doing so, he would do them great harm, for he is bound to the laws like a child is bound to a parent; to go against the laws is like hitting a parent. Instead, Socrates should in effect try to negotiate with the laws, maybe persuade them to release him.
Socrates attaches the guilt for his condemnation not to the laws, but to his enemies who have perverted justice. In Shakespeare’s Roman play ‘Titus Andronicus’, there is a scene, (Act 4, Scene 3), in which arrows are shot by Titus and others into the Roman court, with letters attached to them, declaring that justice cannot be found in Rome:
Come, Marcus; come, kinsmen; this is the way.
Sir boy, now let me see your archery;
Look ye draw home enough, and ’tis there straight.
Terras Astraea reliquit:
Be you remember’d, Marcus, she’s gone, she’s fled.
Sirs, take you to your tools. You, cousins, shall
Go sound the ocean, and cast your nets;
Happily you may catch her in the sea;
Yet there’s as little justice as at land:
No; Publius and Sempronius, you must do it;
’Tis you must dig with mattock and with spade,
And pierce the inmost centre of the earth:
Then, when you come to Pluto’s region,
I pray you, deliver him this petition;
Tell him, it is for justice and for aid,
And that it comes from old Andronicus,
Shaken with sorrows in ungrateful Rome.
— — — — — — — — — —
… but Pluto sends you word,
If you will have Revenge from hell, you shall:
Marry, for Justice, she is so employ’d,
He thinks, with Jove in heaven, or somewhere else,
So that perforce you must needs stay a time’.
‘Terras Astraea reliquit’ is a quote from Ovid’s, (43 BC — 17/16 AD), ‘Metamorphosis’: ‘Astraea (the goddess of justice) has left the earth’. The departure of Astraea, Justice, declares the Age of Iron has arrived, the fourth and final stage of the world’s decline from the Golden Age. But, according to legend, she will one day return, at the onset of a new Golden Age.
However, prescriptive laws (as opposed to descriptive ones, i.e., the laws of nature), are surely artificial constructs, devised by legislators, with, and without, the consent of the people, imposed on individuals in society, at times to be altered or revoked, sometimes on a whim. Personifying Law and Justice merely sidesteps a problem that afflicts the philosophy of law, and of ethics, (though law and ethics are not the same thing), that of the seemingly necessary appeal to foundations.
What is the justification for law? If something is justified its legitimacy for being justified is derived from something else, there is some reason for it being just, a reason that is the foundation of its legitimacy. That which is legitimate has its legitimacy conferred upon it, by something else; a reason for its legitimacy that is its foundation.
But what of the legitimacy of the foundation itself? Why confer such a privilege upon the foundation? What gives it its privileged role? Whatever has authority derives its authority from this privileged foundation. Whatever is determined by the foundation counts as legitimate, and so, by the very fact of its being a foundation, the foundation itself can only derive its legitimacy from itself, it derives its authority from itself, it is self-determined, and the difference between that which confers legitimacy and that which has legitimacy disappears.
Those philosophers who make this appeal to foundations also resort to various kinds of myths and fables to circumvent this problem.
Thomas Hobbes, (1588–1679), referred to a mythical ‘state of nature’, (before organized society existed, in which the lives of individuals were ‘solitary, poor, nasty, brutish and short’, and human life was ‘a war of all against all’), to justify a contract having been made between the people and their ruler. According to the terms of this contract, the ruler would agree to protect the rights of the people, to act as an arbiter in disputes, to establish just laws, and those who lived under the ruler’s jurisdiction would agree to accept the absolute authority of the ruler and of such laws that he established. The authority of the ruler had to be absolute, i.e., the ruler was above the law, to avoid the danger of social disharmony, and there was no possibility of opting out. Such a social contract, Hobbes says, was an ‘occurrence’ in which individuals came together and gave up some of their individual rights in order that others would give up some of their individual rights, etc., so that we can all live in harmony, but when this ‘occurrence’ occurred is not specified, unsurprisingly, because it never happened.
Thomas Paine, (1737–1809), argued that an individual should be granted liberty and allowed to do anything he or she wants, including the right to pursue his or her own happiness, provided no harm is done to others in the process. Hence, the American Declaration of Independence, that allows to each person life, liberty and the pursuit of happiness as a fundamental right. Fundamental, i.e., a right that supposedly justifies itself, in some way. Still, this is certainly a great improvement on the notion of absolute authority.
‘But where, say some, is the King of America?’, asked Paine, ‘I’ll tell you, friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Great Britain… so far as we approve of monarchy, that in America the law is king’.
John Rawls, (1921–2002), introduces the notion of ‘fairness’ into the discussion. ‘In justice as fairness society is interpreted as a cooperative venture for mutual advantage’, he said, with echoes of Hobbes. He asks us to imagine a group of amnesiacs (i.e., they cannot remember who they are) getting together to decide what they want from society. Not knowing who they are, whether they are poor or well off, they cannot therefore defer to any special interest they would otherwise represent. ‘The principles of justice are chosen behind a veil of ignorance’. Such principles as, for instance, every person having an equal right to the maximum amount of liberty compatible with allowing liberty for all, and, inequalities being allowed only if there is reason to think that such inequalities will benefit the least well-off in society. The idea is that we would thereby choose to help the poorest in society if we did not know whether or not we ourselves were poor.
But Rawls also introduces an arbitrary ‘principle of priority’, in which liberties come first, social equality second. Never give up a liberty even if it would benefit the less well-off. Why not? ‘The suppression of liberty is always likely to be irrational’, said Rawls. Why is that?
Hegel’s great work on law and justice, the ‘Philosophy of Right’, is therefore not concerned with any social contract theory, (Socrates and the others mentioned above all refer to some form of mythical social contract); its subject matter is nothing other than the reality of self-determination itself. Freedom, self-determination, is its own foundation, and the ‘Philosophy of Right’ begins with a discussion of the concept of free will; which can only realize itself within a complicated social context, including the legal system. An individual is never truly free without participating in the different aspects of the life of the state: ‘The basis of right is the realm of spirit in general and its precise location and point of departure is the will; the will is free, so that freedom constitutes its substance and destiny and the system of right is the realm of actualized freedom, the world of spirit produced from within itself as a second nature’.
And we know a bad law from a good one; a bad law thwarts reason itself, a good one is rational, the reason for the law is its own explanation, for reason is self-determined. Laws have to be imposed by an authority of course, but if they are rationally justifiable they are not simply something imposed upon us externally, they make freedom possible, for obedience itself is an important stage in the formation of character. To obey the law is to conform to what is an expression of one’s own essential rationality and will, for laws are universal, applicable to everyone. A rational legal system not only regulates our conduct effectively, it raises us up to a higher level of self-consciousness, a self-consciousness of our own freedom.
Percy Bysshe Shelley, (1792–1822), expresses as much in ‘The Mask of Anarchy’, (although he is personifying the laws again), which has unjust forms of authority as its theme, dealing as it does with the Peterloo massacre, 1819, in which the cavalry charge into a crowd, killing many, at St. Peter’s Fields, Manchester; a crowd that had gathered to demand a reform of parliamentary representation. The poem ends with Hope (personified) calling to the people of England:
‘The old laws of England — they
Whose reverend heads with age are grey,
Children of a wiser day;
And whose solemn voice must be
Thine own echo — Liberty!’