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Law, Literature and Philosophy
University of Cincinnati School of Law
Tomain, Joseph P.

Law,literature and philosophy 2012:
Professor Tomain
UC Law
 
 
Sophocles, Antigone
1.      Edict saying that she can’t bury her brotheràLAW CONFLICT at issue:  Positive v. Natural Law
a.       Positive law:  Comes from recognized authority (Man-made, human law)
                                                              i.      Man-made, written, clear.  Problem:  Fallible bc/ it’s created by fallible people.
                                                            ii.      HERE: This is the edict, saying her brother can’t be buried b/c he’s a traitor
b.      Natural law:  Comes from nature (other worldly)
                                                              i.      Unwritten/ Infallible. 
1.      Problem:  Not uniform or reliable
                                                            ii.      HERE:  This is her belief that her brother needs to be buried to preserve his soul
c.       King Creon’s reasoning in creating the man-made law(edict):
                                                              i.      Disgraces traitors, shows his power (keeps his authority), prevents future traitors
d.      Antigone’s reasoning for wanting to obey the natural law:
                                                              i.      This it is more important than Creon’s law, b/c if he isn’t buried properly- he will be forced to roam the earth- purgatory (no heaven or hell);
                                                            ii.      There is a law from Gods, saying you need to bury fallen family members
e.       AntigoneàCreon:
                                                              i.      You have no right to tell Heaven what to do.  “It is not your law to make.”  Because he doesn’t have control over the after-life (soul), only God has the right/authority over that.  Creon’s law over the state should not overreach into natural law.
2.      Haemon (Creon’s son and Antigone’s fiancé)
a.       Says (initially):  You are my father, I’ll do what you say.  Then says: Be Reasonable.
                                                              i.      Tries to tell his father there is no shame in reconsidering/reasoning; people aren’t behind his edict.
                                                            ii.      But Creon is not persuaded and says that Haemon is just taking the “woman’s” side.
3.      Tiresias- Blind Prophet (Seer)
a.       Tells Creon he is going to make the God’s angry and he must change his ways
                                                              i.      Ultimately, Creon is persuaded- but it is too late.
4.      Three Criticisms of Creon’s man-made law:
a.       Not yours to give- Antigone
b.      Not reasonable/doesn’t have support of people- Haemon
c.       Problems will arise with the gods- Tiresias.
5.      Class Notes:
a.       Antigone is the world’s first- First Amendment case!
                                                              i.      Idea that practicing religion should be free from Man’s law.
                                                            ii.      Idea state is getting involved in the soul (since Creon’s punishment affects afterlife)
b.      Fear is what really drives Creon’s edict (fear of losing power/seeming weak/ect.)
c.       Critical Time in Western Thought (Concerning Religion!):
                                                              i.      Sophocles criticizes Creon for breaking with the Gods
1.      Versus Plato and Socrates who say that “man is the measure of all things”
a.       Their reasoning shows a shift in attitude for deterring what is just.  Human duty v. Divine duty.
                                                                                                                                      i.      They are more scientific- they look empirically at the world.
 
 
Plato‐ Apology
1.      The Apology is really a defense that Socrates put on for himself after being charged in Athens.  Plato (Socrates’ student) then wrote this, which is supposed to be what Socrates said in his defense.
2.      Philosophical Imperative:  The unexamined life is not worth living.
a.       This is why Socrates is convicted- b/c he was Questioning Everything (like Nuns in class)
                                                              i.      The idea behind questioning everything is that- by questioning- you will get to the Truth- and Philosophy (according to Socrates) is the Pursuit of the Truth.
                                                            ii.      His behavior was not favored in Greece and thus he was persecuted.
3.      Three charges brought against Socrates:
a.      Sophist
                                                              i.      This was a major affront to Socrates:
1.      First, it implied he was being paid to teach his students how to be philosophers, when in fact he was not. 
2.      Second, The idea that Rational Thought was a skill to be taught for profit offended him because Philosophy is a pursuit of the TRUTH (And Sophists don’t care for the TRUTH, they just want to win).
a.       He says he can’t teach his students what he knows, he can only teach them the system of questioning.  Socrates says Philosphy is a process, not teaching things.
b.      Corrupting the Youth
                                                              i.      He argued that he would not want to make the youth corrupt because that would make them evil and then they would turn on him.
1.      He argues that he was simply trying to teach them to question everything; and if that is corruption- he will admit to that.
c.       Hierarchy
                                                              i.      Why it was a problem: 
1.      Need religion to have values, to be in mainstream.
2.      The Daemon, a voice (like conscience) he equates to a God.  Tells him what not to do
                                                            ii.      Charged b/c:  Would not say he believed in the City’s gods (thus implying that he did believe in God (or Gods), but just not the ones proposed by Athens.
1.      Thus he probably was impieous by Athen’s standards b/c he did question them.
4.      Socrates tells the story of how his friend from the Oracle told him he was the wisest.
a.       Initially, he didn’t believe he was the wisest, so he went about testing this by going against the “wisest” to see if they beat him:
                                                              i.      First- Started with Politicans
1.      But won b/c he found them pandering to public; they did not get to TRUTH
                                                            ii.      Second- Went to the Poets
1.      Thought they were wise, but they only knew what they themselves produced
                                                          iii.      Third- Craftsmen
1.      Again, he was more wise b/c while the craftsmen practiced their own arts well- each deemed himself wise in other things which they weren’t.
                                                          iv.      Finally- realized that he was the wisest because he knows that he knows nothing
1.      Thus the idea of Questioning Everything- and constantly pursuing the truth.
5.      Socrates says that his “just” punishment is to eat in the great hall (where the Olympic atheletes eat) because he is, according to himself, an intellectual athlete (always training/strengthening his reasoning skills to better ascertain the truth).
a.       Of course, his accusers disagree and sentence him to drink Hemlock (death).
 
 
Plato- The Crito
1.      Again, another writing by Plato that involves Socrates’ actions.  This comes after the Apology.
2.      Socrates claims a Social Contract with Athens and chooses not to escape, but to face the senetence given to him by Athenian government and to drink the Hemlock (die).
3.      Issues: 
a.       If you can’t live the way you want, would you be willing to die?
                                                              i.      Is there a type of life you’d be willing to die for?
4.      Socrates’ friend (Crito) comes to him while he is in jail, awaiting the death, and tries to convince Socrates to escape.  But Socrates out-reasons Crito and thus commits himself to death.  Soc. Says:
a.       It’s better to regard the opinion of only one important/wise/crucial person rather than to care about public opinion.
                                                              i.      We should care about the opinion of the Good rather than the public
b.      Principle is more important than body
c.       We must do no wrong/evil
                                                              i.      In leaving the prison against the will of the Athenians he does wrong to Athens
d.      He formed a social K with Athens
                                                              i.      Marriage with the state- escaping from prison would be striking Mother/Father
                                                            ii.      He says that he had an implied contract with the City- since he had lived there so long, being protected under its laws, he had the freedom to leave if he did not like those laws, and now- being punished to death by those laws, is now bound to them (b/c of the freedom/life he enjoyed under them throughout his life).
e.       Also, he picks death over banishment
                                                              i.      B/c if he escapes, he hurts his friends/kids.  If he goes to the new city, he will go as a “corrupter of the laws.”
1.      This is not the person he wants to be.  He would rather “depart in innocence- a sufferer and not a doer of evil; a victim, not of the laws, but of men.”
5.      Lessons from The Crito:
a.       It is the ultimately embodiment of rational thought- thinking through a problem
b.      Order- Live by/die (acquiesce to the state) by the idea  of the law, not the jury individually
c.       What the sun represents in the “cave”:
                                                              i.      Here- The LAW in it’s ideal form.  (Republic, Book VII).
 
 
Plato- The Republic, books 1‐7
1)      Book I asks:  What is JUSTICE?
a)      Importance of the dialectic method:  Two parties in Opposition.  This is how life is examined.  It is important to the law because:
i)        Two sides, back and forth, to get the best answer
(1)   (Even today as lawyers) we need to be able to hold two opposing thoughts in your mind. 
(a)    Thus, the Dialogue can be done internally  (though is arguably better with two people).
b)      Four answers: (given using the Dialitic approach to define justice as an idea)
i)        Rendering what is due: 
(1)   Cephalus (old king)- Justice is honoring legal obligations
(a)    Socrates answers that this is wrong by giving the hypo of returning a weapon to a madman.
ii)      Actions
(1)   Polemarchus (son of king)- Justice is Helping friends/Hurting enemies
(a)    Soc. Answers that this is wrong b/c you can’t always tell friends from enemies.
iii)    Might is Right
(1)   Thrasymachus- The advantage of the stronger is just
(a)    Soc. doesn’t have a great comeback

atural law and human laws thus change).  IE- Slavery
 
FOUR DIFFERENT KINDS OF LAW- Eternal, Natural, Divine, Human:
ETERNAL:
1.      Eternal law—the highest. The law of everything ; Stands outside of time–Perennial, meaning that it remains true year after year and is always there in time.
2.      God governs the whole universe in an orderly, lawful fashion.  For Aquinas, the eternal law is God and eternal law is all God’s doing-the nature of everything. That which is random is subject to eternal law. “And so the eternal law is not ordained for another end.” (pp 8)
3.      Although everything is subject to eternal law, humans are much more subject to it (as man is made in the image of God).
a.       Reason:  God’s Mind. 
                                                              i.      This is why Human beings can never know the whole of eternal law
                                                            ii.      According to Aquinas, Eternal law is in God’s mind and it would be arrogant for a human to suppose that he knew what God was thinking.
b.      Common good:  Universal Good for the Universe.
                                                              i.      It IS the common good to some extent. 
                                                            ii.      Eternal law is very comparable to Plato’s idea of the Big Good (Form of Good (Sun).
c.       Authority:  God
d.      How is it promulgated?  It’s embedded in everything; it’s in the nature of existence
NATURAL
1.      Natural law—The precepts of natural law include reason, freedom, and providence.
a.       (Freedom meaning rational creature’s participation in natural law.)
2.      Since everything is governed by eternal law- and eternal law is imprinted on us- one meaning is that natural law is simply rational creature’s participation in eternal law.  It is the part of eternal law that pertains to us, and which we naturally know by being rational creatures.
a.       It is a subset of eternal law- consisting of man’s participation in eternal law- Human Nature.
3.      Human nature is inclined to apprehend the good through reason.
a.       What is Human Nature? Consists of two indemonstrable principles:
                                                              i.      1st Principle:  The same can’t be affirmed and denied at same time
1.      This is the principle of non-contradiction
2.      Notion of being and not being:  Life being better than death
a.       The idea it is better to be purposeful than “not be”
                                                            ii.      Second Principle:  Good is to be done and evil is to be avoided
1.      Humans Know the good b/c it’s apprehended by reason
a.       This is why the invisible ring from the Republic won’t work here… you know (rationally) that you aren’t doing good
2.      Aquinas implies that the good is associated with self-preservation. = activities that preserve human life and prevent the contrary belong to NL
a.        Sexual union and upbringing of children belong to NL.
4.      Does the Natural Law Include Several Precepts or Only One?
a.       It includes only one, not several. – Since there is one power of reason in humans, there is one precept of NL.
                                                              i.      NL results from the nature of human beings, which is one as a whole, though it has multiple parts.
                                                            ii.      The precepts of NL are related to practical reason. (reason apprehends Nature)
5.      Aquinas concedes there is an oneness to natural law: do and seek good and shun evil (fundamental).
a.       Common Good:  Pursue Good/Justice
b.      Reason:  Empirical Observation of the Natural World.  Discerning good from evil- comes from man being a rational creature.
c.       Authority:  Nature
d.      Promulgated:  Written on Men’s Hearts; It’s in human nature
                                                              i.      Notion of the conscience, whereby basic principles of natural law are held.
1.      Reason and conscience makes one aware of the elements of natural law and gives us inclinations.  The most fundamental precepts are unchanging: Do good and pursue it/avoid evil.
                                                            ii.      Yet, he does suggest that natural law can be changed by way of addition. Human experience discovers these additions and then they are added to natural law.