Universal Ethic-Convergences 4-Graeco-Roman Sources

1.2. The Graeco-Roman sources of the natural law

18. The idea that a natural right exists prior to any positive legal laws is already to be found in the classical Greek culture with the exemplary figure of Antigone, the daughter of Oedipus. Her two brothers, Eteocles and Polyneices, battled between themselves in their quest for power and were both killed. Polyneices, the rebel, was condemned to remain unburied and to to be burnt with fire. But Antigone, to fulfill the duty of the piety towards her dead brother, appealed against the public prohibition of burial issued by king Creon by citing to the “unwritten and unchanging law.”

CREON:
And yet you dared to break those very laws?
ANTIGONE
Yes. Zeus did not announce those laws to me
And Justice living with the gods below
sent no such laws for men. I did not think
anything which you proclaimed strong enough
to let a mortal override the gods
and their unwritten and unchanging laws.
They’re not just for today or yesterday,
but exist forever, and no one knows
where they first appeared. So I did not mean
to let a fear of any human will
lead to my punishment among the gods.(14)

19. Plato and Aristotle apply the distinction advanced by the Sophists between the laws that have their origin in convention, that is to say a pure positive decision (thesis), and those that have validity “by nature.” The first are neither eternal nor valid in any general way, and they are not obligatory upon all. The second are obligatory upon all men, always and everywhere.(15) Some Sophists, like Callicles of Plato’s Gorgias, referred back to this distinction to dispute the legitimacy of the laws instituted by the human polis or city-state. To such laws they opposed their idea, narrowed and wrong, of nature reduced solely to a physical component. In this manner, against the political and legal equality of the citizens in the polis, they supported what seemed to them the most evident of the "natural laws": those with greater might ought to rule over the weaker.(16)

20. Nothing of this in Plato and Aristotle. These two do not oppose natural right and the positive law of the polis. They are convinced that the laws of the polis or city-state are generally good and constitute the actualization, more or less achieved, of a natural right conformed to the nature of the things. For Plato, the natural right is an ideal right, a rule for the lawgivers and for the citizens, a rule that concurs as the foundation and the value of the positive law.(17) For Aristotle this supreme rule of morality corresponds to the realization of the essential form of nature. That is moral which is natural. The natural right is unchanging; the positive right changes relative to peoples and different epochs. But the natural right it is not placed in opposition to positive right. It it is embodied in positive right, that is, it is the application of the general idea of justice to social life in its variety.

21. In Stoicism, the natural law becomes the key concept of a universal ethic. That which corresponds to nature is good and ought to be done, with nature understood in both a psycho-biological and rational sense. Every man, regardless of the nation from which he comes, ought to integrate himself like a part of the whole of the universe. He should live according to nature.(18) This imperative presupposes that an eternal law, a divine Logos, exists, one which is present in a cosmos filled with rationality, and which is found in the human reason. It is in this way that, for Cicero, the law is "the supreme reason within nature that commands us to do what we ought to do, and prohibits its opposite."(19) Nature and reason constitute the two sources of our knowledge of the fundamental moral law, a law which is of divine origin.

(14) Sophocles, Antigone, v. 449-460 (trans. Ian Johnston of Malaspina University-College, Nanaimo, BC, available at http://records.viu.ca/~johnstoi/Sophocles/Antigone.htm).

(15) Cf. Aristotle, Rhetoric, I, XIII, 2 (1373 b 4-11) : "The particular law (nomos idios) is that every group of men determines in relation to its members, and these types of laws divide themselves in unwritten laws and written laws. The common law (nomos koinos) is one which conforms to nature (kata physin). In fact there is one right and one wrong, common in nature, which all recognize through a species of divination, even if there is no communication or reciprocal convention. So it is seen the Antigone of Sophocles declares that it is just to bury Polyneices, whose burial was forbidden, affirming that such burial is right, being in conformity with nature"; cf. also Nichomachean Ethics, V, 10.

(16) Cf. Plato, Gorgias (483 c-484 b) [Callicle’s Discourse] : “Nature, in my opinion, herself proclaims the fact that it is right for the better to have advantage of the worse, and the abler of the feebler. It is obvious in many cases that this is so, not only in the animal world, but in the states and races, collectively, of men—that right has been decided to consist in the sway and advantage of the stronger over the weaker. For by what manner of right did Xerxes, march against Greece or his father against Scythia? Or take the countless other cases of the sort that one might mention. Why, surely these men follow nature—the nature of right—in acting thus; yes, on my soul, and follow the law of nature—though not that, I dare say, which is made by us; we mold the best and strongest amongst us, taking them from their infancy like young lions, and utterly enthrall them by our spells and witchcraft, telling them the while that they must have but their equal share, and that this is what is fair and just. But, I fancy, when some man arises with a nature of sufficient force, he shakes off all that we have taught him, bursts his bonds, and breaks free; he tramples underfoot our codes and juggleries, our charms and “laws,” which are all against nature; our slave rises in revolt and shows himself our master, and there dawns the full light of natural justice. (trans. from Plato, Gorgias, Perseus).

(17) In the Theaetetus (172 to-b), the Socrates of Plato explains the inauspicious political consequences of the relativist thesis attributed to Protagoras, according to which every man is measure of the truth: "And likewise in affairs of state, the honorable and disgraceful, the just and unjust, the pious and its opposite, are in truth to each state such as it thinks they are and as it enacts into law for itself, and in these matters no citizen and no state is wiser than another . . . . But in the other class of things—I mean just and unjust, pious and impious—they are willing to say with confidence that no one of them possesses by nature an existence of its own; on the contrary, that the common opinion becomes true at the time when it is adopted and remains true as long as it is held.” (trans. from Plato, Theaetetus, Perseus)

(18) Cf., for example, Seneca, De vita beata, VIII, 1: "It is necessary to follow nature as a guide; reason observes it and consults it. Therefore it is the same thing to live happily and to live according to nature.” (Natura enim duce utendum est: hanc ratio observat, hanc consulit. Idem est ergo beate vivere et secundum naturam).

(19) Cicero, De legibus, I, VI, 18: "Lex est ratio summa insita in natura quae iubet ea quae facienda sunt prohibetque contraria."