12 January 2007

The 'Concept of Natural Law' as Antedating the Stoics

Suppose we say that the 'concept of natural law' is the following:

There are some precepts and proscriptions which:
  1. are binding upon everyone
  2. can be naturally known, and known to be so binding; and,
  3. are prior to human law, in the sense that:
  • any human law which commands or forbids the same thing as these is binding because of these; and
  • any human law, obedience to which would require disobedience to these, is not binding.
Nota bene:
--By 'binding' I mean 'binding in conscience'; viz. it must be followed on pain of doing what one should recognize as wrong.
--We should expect these precepts and proscriptions to be few in number and to pertain to essentials of human social life. They would not, by any means, constitute the whole of 'justice' or 'morality.'
--These precepts and proscriptions might aptly be called natural because they are naturally known; are binding on all who share human nature; and are interpretable as laws that are necessary for the social life of those who have a nature such as ours.
--We should expect that these precepts and proscriptions would, additionally, be aptly interpreted as deriving from providential divine legislators.

Then it seems clear that the 'concept of natural law', so described, antedates the Stoics by far. It is found, for instance, with all of the elements described above, in the Antigone of Sophocles:
Creon
You, you with your face bent to the ground, do you admit, or deny that you did this?

Antigone
I declare it and make no denial.

Creon
You, ...tell me--not at length, but briefly--did you know that an edict had forbidden this?

Antigone
I knew it. How could I not? It was public.

Creon
And even so you dared overstep that law?

Antigone
[450] Yes, since it was not Zeus that published me that edict, and since not of that kind are the laws which Justice who dwells with the gods below established among men. Nor did I think that your decrees were of such force, that a mortal could override the unwritten [455] and unfailing statutes given us by the gods. For their life is not of today or yesterday, but for all time, and no man knows when they were first put forth. Not for fear of any man's pride was I about to owe a penalty to the gods for breaking these. [460] Die I must, that I knew well (how could I not?). That is true even without your edicts. But if I am to die before my time, I count that a gain. When anyone lives as I do, surrounded by evils, how can he not carry off gain by dying? [465] So for me to meet this doom is a grief of no account. But if I had endured that my mother's son should in death lie an unburied corpse, that would have grieved me. Yet for this, I am not grieved.

10 comments:

Catherine Osborne said...

Yes, I agree that Sophocles looks to be offering us a pretty clear example of natural law in the mouth of Antigone here. As for why philosophers overlook it, could it be because they don't look for legal theory in poetry or in fiction? But if we're looking for the origin of an idea, of course fiction is no worse than any other medium as evidence that the idea has appeared.
I think there are other hints of natural justice in (for instance) Philoctetes and Ajax. Have written about these bits in my imminently forthcoming book...

Michael Pakaluk said...

Dear Catherine,

Your book sounds intriguing. What is its title?

I should have thought that after Dover the case was settled that studies of concepts in morality need to appeal to more than philosophical writers.

Striker wishes to distinguish between natural justice and natural law--rightly I think. She holds, plausibly, that it is possible to accept natural justice without natural law, although probably not the reverse.

Her argument that Aristotle accepts natural justice but not natural law hinges (as far as I can see) entirely on the supposition that Aristotle admits no exceptionless general moral precepts. That is why (she thinks) he recognizes natural justice but no natural laws.

For my part I follow Ancombe in thinking that Aristotle does hikd that some actions are generally and (in any ordinary case) without exception wrong--proscriptions against murder, theft, and adultery at least.

Now, strangely, as I observe in my later post, Striker affirms that Aristotle accepts a 'common core' of laws, necessary in any society, and founded in natural justice, that would include these precepts. So then (once again) how does he not accept natural law?

Anonymous said...

A question: does Aristotle think of law as a necessarily exceptionless rule? I wouldn't think so, though I haven't looked into it in any detail. If not, then denying that he has a concept of natural law on the grounds that laws are exceptionless general rules would be, well, pretty unfair.

Of course, if later thinkers who are without question 'natural law' thinkers do operate with that understanding of law, then Aristotle would differ importantly from those thinkers. My limited knowledge of Aquinas suggests to me that his own thinking does not differ much from Aristotle's on the issue of rules and precepts, but that many of his modern commentators and champions are heavily deontological in their own thinking and in their exposition of what a 'natural law' ethic looks like. We certainly seem not to find anything in Aristotle, at any rate, that suggests that, e.g., non-procreative sex is everywhere and always wrong because it perverts the teleological structure of human sexual faculties. Nor do we find very different but still sweeplingly deontological claims like those made by John Finnis, e.g., that it is simply a principle of practical rationality that every human being must respect every basic human good in every act.

My suspicion is that it is a concern to distinguish between those sorts of 'natural law' thinking and the sort of thought we find in Aristotle that drives the (fairly common?) denial that Aristotle has a 'concept of natural law.'

Michael Pakaluk said...

Dear Anonymous,

That's a very good point. To ascribe to Aristotle a doctrine of natural law, we should presumably see whether he thinks some laws, in the sense in which he understands law, exists and are known (somehow) by nature.

Or, here is another way of approaching the point. Would Aristotle have held that laws against murder and theft (put aside adultery), in a justly constituted society, may admit of interpretation, under equity, so that they have exceptions? Then say: for him the 'natural law', as he would recognize it, has exceptions to just the same extent.

M

Michael Pakaluk said...

Catherine was I think too modest to note her new book. But I've discovered it at the OUP site:
http://www.oup.com/uk/catalogue/?ci=9780199282067

I gather it's about avoiding both extremes, of cruelty and of sentimentalism, in our dealings with animals, with the ancients as our guides.

MP

Jason_Pappas said...

I’m not convinced. I have a problem with the last statement if it is a requirement: “We should expect that these precepts and proscriptions would, additionally, be aptly interpreted as deriving from providential divine legislators.” This would make the law Divine Law. One may propose a theory that Natural Law and Divine Law must coincide. However, one may not. Perhaps "providential" does just that.

Let’s assume that natural law is discovered in ethics as in physics or as in geometry: by observation or deduction from self-evident axioms. I suggest this as your second requirement: “can be naturally known, and known to be so binding.”

Let’s also assume that Divine Law is positive law stipulated by a Deity. If one holds that the discovery of law of nature’s creator won’t contradict His explicit stipulations Divine Law will equal Natural Law. But that’s a theological theory.

My first impression of Antigone is that of Divine Law – law stipulated and enforced by an eternal God. One doesn’t discover such a law as in physics or geometry.

Now you add the element of conscience. That complicates matters and I have ignored it for the moment.

papabear said...

Sure, to make the connection between Natural Law and Divine Law is a metaphysical argument, not an argument proper to the science of ethics. But I don't think one simply reads the Natural Law off of nature either, through "observation or deduction"--rather it is a work of reason making connections between the goods associated with human nature and what will lead to those goods.

Jason_Pappas said...

I agree with you, papabear, in many respects. How one reasons to natural rights wasn't my main point and my examples were limited.

Upon reading the whole of Antigone it is indeed an example of natural law. In lines 517 and following, Antigone argues that despite character, all humans warrant some similarity of treatment. From the Theodoridis translation:

Antigone: I’m burying a brother, not a slave!
Creon: The one was fighting against his country while the other in her defense.
Antigone: Hades, however seeks similar laws for all.
Creon: But it is not right for good and evil to be rewarded by the same lot.
Antigone: Who knows if such things are of any value down below.

‘Similar law’ is translated as ‘requires rites,’ ‘long for these rites,’ ‘desires these rites’ etc. in different translations. But the universality is clear especially given the other passages and the total composition.

Divine rights? Natural rights? I have one more! This weekend I was in the American Wing of the Metropolitan Museum of Art when, at the end of a long corridor, I came upon this statue of Antigone ‘in the act’ by the 19th century sculpture Rinehart. The 20th century caption said Antigone was fighting ‘tyranny’ and for ‘her civil rights.’

Michael Pakaluk said...

Jason,

Thanks for the link to the statue in the Met. I'll have to be sure to see it next time I'm in NY.

As regards Antigone 519, the mss. have "Hades desires these laws" (nothing there about 'for all'), which many editors change to "desires similar laws." See Jebb's note:

http://www.perseus.tufts.edu/cgi-bin/ptext?doc=Perseus%3Atext%3A1999.04.0023&query=commline%3D%23290

"toutous, the reading of the MSS., has been rejected by nearly all modern editors in favour of isous, which the Scholiast mentions as a variant. But the simple toutous is perfectly suitable, --‘these laws,’ the laws of sepulture (to thaptein, as a schol. paraphrases); and everything that isous would convey is already expressed by homōs."

Let's assume that Jebb is correct in preferring "these laws" (as I believe he is). Then, in your view, does the passage still affirm the 'universality' which, you think, is required for an affirmation of natural law?

I understand that you think that the play as a whole, given its 'total composition', affirms this. My question here is about your reading of those lines.

MP

Jason_Pappas said...

That’s a difficult question. I purposely added translations that weakened my case. I also included the 1st line that suggests the dignity of a proper burial isn’t universal among men but only among free men. One might assume that Antigone didn’t even have to say “and he was a Greek” because everyone here was Greek, slave and free alike. This raises several questions before I answer yours.

Scope: Does universality require unlimited scope across the human species?
Durability: Does “desires similar laws” suggest they may not be eternal? Desires do wane, even divine desires!
Source: Is nature the source or is it only paternal, tribal fathers, heavenly fathers, “our way immemorial?”

Let me propose that natural law generally emerges with a flawed universality that too limited in scope but whose source in nature allows – indeed even demands – that this is subsequently corrected upon reflection, resulting in a change in human consciousness of what is seen as eternal to the dignity and/or well being of human life.

Depending on the interpretations, the single line in question may only imply ‘our sacred tradition’ and not quite natural law, if we were to stick to that one line only. “Our” in this case can even include the deities who are ancestral to the Greeks. Thus we may not have a nice separation between custom and divine law nor achieve the universality required of true natural law.

However, I believe the intension is to remove the will of man from disrupting the durability of law and thereby establish a firm foundation for human dignity. But not being a scholar I shy away from relying on a single line. For me the whole is such that the scale tips towards “natural rights” which coincides with “divine rights” in this case. At least that is my current thoughts on the matter.

Thanks for bringing this literature to our attention.

For ‘positive law’ vs. ‘natural law’ (or ‘divine law’) also consider the following from Aeschylus’ “Seven Against Thebes.” (Translated by E. D. A. Morshead)
HERALD
I charge thee, not to flout the city's law!
ANTIGONE
I charge thee, use no useless HERALDing!
HERALD
Stern is a people newly 'scaped from death.
ANTIGONE
Whet thou their sternness! burial he shall have.
HERALD
How? grace of burial, to the city's foe?
ANTIGONE
God hath not judged him separate in guilt.
HERALD
True-till he put this land in jeopardy.
ANTIGONE
His rights usurped, he answered wrong with wrong.
HERALD
Nay-but for one man's sin he smote the State.
ANTIGONE
Contention doth out-talk all other gods!
Prate thou no more-I will to bury him.