1st INTERNAL ASSIGNMENT

JURISPRUDENCE (LEGAL THEORY)

“NATURAL AND POSTIVE LAW WITH REFERENCE TO
ANTIGONE”

NAME :ASHAM SHARMA

PRN: 17010126491
Division :E
2nd YEAR
 COMPARISON OF NATURAL LAW SCHOOL WITH
POSITIVE LAW SCHOOL

ABSTRACT

Thebes was a very happy place for its people to live until the curses started to ruin the place. A curse
started from Oedipus’s sin by killing his own father and mating with his own mother. When Oedipus
died, there were two options. Polyneices and Eteocles, who both killed each other in a battle to win
the throne. This left Thebes a unconquered land. Creon, Jocasta’s brother was announced as king
who brought more destruction to the land of Thebes. Creon, accepting the throne, ordered Eteocles
corpse to be buried with honour but Polyneices left to be unburied. Antigone, didn’t followed the
King’s order as she feels it’s against law of gods and successfully buries Polyneices. Creon after
finding that, Antigone has breached the rule, sentenced to executed. Haemon was Creon’s son and
Antigone’s fiancé. He killed himself and his dead body lied with his love. Haemon’s mother killed
herself and blamed her husband for this devastation. In the end, Creon feels everything happened
because of him, so he killed himself. By this play we will distinguish between natural law and positive
law in terms of Jurisprudence.

CONCEPT OF NATURAL LAW

There is no exact meaning and definition of natural law and the term natural law theory has been
interpreted by various jurists at various time intervals. Natural law is literally called ‘natural’ because
it is believed to exist independently of human will. It’s natural because this law is not man-made.
Natural law is a kind of philosophy that certain rights or values are essential by virtue of human
nature and universally acceptable through human reason. Historically, natural law refers to the use of
reason to analyse both social and personal human nature to infer binding rules of moral behaviour. 1
Natural law is ideologies of human conduct discoverable by reason, from basic liking of human nature
and that are absolute, constant and of universal validity for all times and places 2. Natural law is the
norm of conduct discoverable by experience and observation as prevalent and useful among different
people. Natural law is the reason in the making and administration of law.

EVOLUTION OF NATURAL LAW

The Natural Law concept has its historical roots in Greek culture and philosophy. First,
we see the concept expressed in theatre, especially in the works of Sophocles (497-406
B.C.). The best example of his work for determining about the natural law is Antigone,
where Sophocles has the point that human nature and human reason are the ground of
moral duties which have to be recognized wherever human beings gather in public.

 Later, known philosophers like Aristotle and Plato argued expressively that nature rather
than convention is the foundation of both law and morality. Centuries later, towards the
medieval period, St. Thomas Acquinas would express this same notion by saying that if
our nature was different, our moral obligations would be different. For over two thousand
years, the greatest brains in Western culture agreed that there are universal laws bases on
human nature against which the laws of a particular king or ruler or legislature have to be
judged. The use of natural law, in its various embodiments, has varied widely through its
history. There are a number of different theories of natural law, differing from each other
with respect to the role that morality plays in determining the authority of legal norms.

1
https://www.jstor.org/stable/3480578
2
Strauss, Leo (1968). "Natural Law". International Encyclopaedia of the Social Sciences. Macmillan.
 VIEWS OF ST. THOMAS ACQUINAS ON NATURAL LAW

Thomas Acquinas defined law to mean a balanced ordering of things concern the
common good broadcasted by whoever changed by the case of the community. He was
saying that base of all law is divine law. Human inclination and reason has a certain
contribution in the understanding of law. All law makes the preservation of human
desirable and possible in the ultimate of human existence. i.e. if the law is intended to do
good is acceptable. There is a connection between law and morality. E.g. there are some
sort of ethical principles which are similar with legal principles. Killing of a human being
is prohibited by law as well as by morality.3 The evolution of all social institutions can
only be judged through the paramount standard of natural law. If human law it is at
variance with any part of natural law Then is no longer legal (i.e. it is no longer law) but
it is a corruption of law. Nowadays people are saying unfair law is not law. Although
eternal law & natural law forms the elementary foundations of social institutions but they
are limited because man needs natural law which must be established to draw the entire
conclusion and to restrain evil man from wrong doing by force. Acquinas divided the law
into 4 classes of law:-
Lex eterna (Eternal law)
Lex naturale (Natural law)
Lex humana (Human law)
Lex divina (divine law)
Lex eternal (Eternal law)
It means the heavenly wisdom governing the universe. Knowledge of which is outside
human capacity except blessings of God himself. Since the world is under the governance
of divine law; then the whole individuals of the universe is governed by the divine reason.
The balanced guidance of creating things on the part of God has a quality of laws.

3
The Superiority or Integrity of Natural Law for Our Time
 CONCEPT OF POSITIVE LAW

In its general sense, positive law is the law which is man-made, basically the law which is created by
the humans by the acts, statutes, by-laws, laws, customs etc. Specifically, Black’s Law Dictionary
defines positive law as “Law actually and specifically enacted or adopted by proper authority for the
government of an organized jural society.”4 In a more complex sense, the term positive law refers to a
legal philosophy of positivism.

JOHN AUSTIN’S VIEWS ON POSITIVE LAW

John Austin is also known as the father of modern jurisprudence. Austin was a contemporary of
Bentham and was influenced by concept of utilitarianism. He used utilitarianism as the basis for his
ideas, which would lay down the foundation of modern positive law theory. Austin felt that law
should be completely detached from morality. He argued that judging laws on a moral basis was
personal and would potentially lead to lawlessness because individuals would be free to select those
laws best designed to meet their needs while ignoring the law of others. 5 Positive law provides a
neutral standard for human demeanour: a legal norm applying equally and impartially to all
individuals. Rule of Law. This concept left little room for civil disobedience, but for Austin “the
mischief inflicted by a bad government are less than the mischiefs of anarchy”. For Austin laws could
not be judged on whether they were bad or good but on useful they were to society – their social
utility.

NATURAL LAW VS POSITIVE LAW IN SOPHOCLES ANTIGONE

4
www.britannica.com
5
Rumble, Wilfred E. (1985). The Thought of John Austin: Jurisprudence, Colonial Reform, and the British
Constitution. London: Athlone Press.
Antigone is one of the greatest play written by Sophocles which shows the conflict between the
natural law and the positive law principles, although this play was written quite a long period ago but
it has arisen some good questions about the law such as- law of god or law of humans? The issue rises
when the new King of the Thebes, Creon announces that, whosoever will bury the body of Polyneices
would be arrested and executed. Antigone, a member of royal family and the sister of Polyneices who
died for the battle of throne with his brother wanted to give a funeral to his brother
She thinks that law of god is bigger than the law set up by the king. So, that’s why Antigone, without
having fear, done the final rites of her brother. Antigone argues that the law of God is superior to the
law of t state. We suffer when we do not obey God's laws as does Creon. Before recognition he
challenges the divine law for the sake of state or human law. Antigone's obstinacy and insolence
rudeness for the right cause is far more admirable than Creon’s opinionated defence of the wrong
cause. She prefers to die a glorious and stoic death. Finally, Creon is left to face the tragic
consequences of his own fatal decisions. Thus, whatever 6Kelsen's dialectic actually means, he argues
that (a) the definition of positive law is purely a matter of taste

(b) various legal philosophers have had different tastes in this regard-hence there is no better or
"objective" determination of the issue.
This view is a reflection of the theory that definition is "nominal." 7

CONCLUSION

Sophocles’ play Antigone appears to confirm the dominance of natural law over positive law. The
conflict and struggle between Creon and Antigone is an indication of the conflict that exists in the
higher moral law- natural law, on one hand the man-made law on the other hand. Creon
pronouncements which are example of positive laws that Polyneices’ body should not be buried are
not only the embodiment of the arbitrary powers of rulers, but also of a transitory nature. Through
natural law in Antigone, an individual has a right to reject society’s infringement on his/her freedom
to perform a personal obligation.

6
Aquinas's Two Doctrines of Natural Law". Political Studies. 48 (5): 929–46
7
"We may define at will those terms which we wish to use as tools in our intellectual work" IrC..55, GmNmAL
THEoRY oP LAW AND STun 4 (Wedberg Trans. 1945)