Tuesday, December 21, 2010

Natural law vs. statutory law

The Asolo Repertory Theatre Company recently toured a production of "Antigone Now" throughout the City and at local high schools. This was a stirring production, particularly the stand-out performance by Devereau Chumrau, who played Antigone; and I was so moved by the story that I went to see it twice and asked the Education Director to send me a copy of the script.

The simple version of the story is that Antigone's brothers, who had been alternating the role of King upon the death of their father, waged a war with one another for control of their City. Following the death of both brothers, their uncle, Creon assumed the role of King and brought a tepid peace to the City. He decreed that traitors could not be afforded a proper burial. Perhaps because of the human drive to find a hero and a villain, he determined that one of Antigone's brothers could be buried and that the other was the cause of the war and must be left in the street to be consumed by buzzards. He meted out a stiff punishment, execution, for anyone who attempted to bury a traitor. Antigone could not bear to see such a fate befall her brother, so she decided to defy her uncle and ignore the pleadings of her older sister and bury her brother.

I was the most moved by Antigone's interchange with her uncle Creon, which is as follows:

Creon: Antigone. Look at me. Did you bury the body?

Antigone: Yes, I did. I buried my brother.

Creon: Did you know the law?

Antigone: I knew. Of course, I knew. Everyone knew.

Creon: And you deliberately chose to break the law?

Antigone: It wasn't a real law, just something you said. God didn't make it. Only you did, and unjust men make unjust laws. Why should I do what is wrong? Because you say so? Your law is nothing, if it goes against God. What are you anyway? Just a man, like any other. There are other laws, you know, that don't change from week to week, or king to king. Laws that no man made, and none should break. They have no beginning and no end. These are the laws I follow and no man can make me break them.

This is among the most powerful interchanges I have ever heard on stage. As an attorney, specializing in the field of ethics, and now as an instructor of constitutional law, this has particular resonance for me, especially Antigone's declaration that "unjust men make unjust laws."

Basically Antigone has beautifully articulated the notion of placing natural law above statutory law. Our Constitution has some elements of natural law, but ultimately it was written by a group of men on a sweltering summer in Philadelphia in 1787 and involves a great deal of political compromise. The law to which Antigone refers is the law of right and wrong which each of us can determine within ourselves, and which for the most part we all share as a deeper human understanding. We all know fundamentally that a proper human burial, when possible, is something that is owed to every living being. And yet, Creon felt that duty to the kingdom should override basic human decency. He decided that by virtue of his role as king, he ought to be the arbiter of who is worthy of respect and dignity.

In times of war, security is often placed above basic civil rights. In fact, on the first day of my constitutional law 1 classes, I ask the students to decide whether they agree with the following statement, "I am willing to give up some of my basic rights in order to feel safe and secure." This leads to a very interesting discussion and helps to frame much of the case law covered during the semester, particularly cases arising during a time of war.

In the name of "security," we have forced homosexuals to lie about who they are, and we have allowed our government to keep secrets. We have permitted citizens and non-citizens to be deemed "enemy combatants" and denied them a speedy trial. Not to mention the fact that in our not-too-distant past, we have interned American citizens of Japanese descent.

Now after 17 years, an unjust law, "Don't Ask, Don't Tell" is about to be officially repealed. As we close out the year, the fate of the wikileaks whistle blowers remains unclear, but many are calling their acts treasonous. And, of course, Guantanamo Bay remains open.

When must we adhere to "unjust laws by unjust men" and when can we, like Antigone, see a different path and choose to follow "the laws that have no beginning an no end?" It seems to me that the least we can do as citizens is determine which laws are unjust and work toward their repeal. Antigone faced death to follow her principles. Surely we can become engaged in the process and right the injustices we see.

It is crucial that we understand the law-making processes in our country and that we examine our laws with a critical eye. Antigone knew intuitively that her uncle was motivated by factors other than a clear understanding of justice. Her speech serves as a reminder of our obligations as citizens.

I salute all the men and women who fought the long and seemingly-hopeless battle to ensure the repeal of a law that forced those who are sworn to uphold the constitution to dissemble. For me, that is the greatest service they could provide this country.

1 comment:

  1. Hi Bonnie!

    This was a really interesting read, and as a first year law student I completely share your beliefs.
    And because I'm curious, I was wondering whether you managed to get your hands on the script? I'd love to read/watch this production. I don't think the company would be touring in India any time soon...