Paulo Roberto de Almeida
Op-Ed
Contributor
Antigone
in Damascus
By RONALD SOKOL
The International Herald Tribune, September 2, 2013
As America seeks a legal justification for intervening
in Syria it might do well to explore a different road to Damascus.
In Dostoevsky’s “Crime and Punishment” a father and
son walk along a road and see a man brutally beating an old horse. The
horrified boy tries to help the nag, but his father pulls him away, saying
“It’s not our business!” The boy’s moral instincts, Dostoevsky shows us, are
still intact whereas the father’s have atrophied. But does the father or the
other witnesses have a legal or moral obligation to stop the cruelty?
Law students studying liability read the case of a man
walking along a beach who sees a person drowning just off shore. Does he have a
duty to save the drowning person? English Common Law says no; the French Civil
Code says yes, as long as he can do so at no risk to himself.
Whether or not there is a legal duty to save a
drowning person, there is surely a moral duty to do so.
That was the point Albert Camus made in his short
novel, “The Fall.” If an atrocity is committed before our eyes, whether it is
the methodical killing of Jews, genocide in Rwanda, slaughter of civilians by
chemical weapons, or a person in need of immediate assistance in a highway
accident, and we have the power to stop the atrocity or help the person in need
at little or no danger to ourselves, surely we have a moral duty to do so.
So enmeshed have we become in the web of law that we
have lost sight of the fact that laws are built on a moral foundation. We don’t
need a law to tell us that it is wrong to kill or that there are times when
there is a duty to help.
The question becomes more complex if the law actually
forbids us to do what we feel is the morally right thing to do. The classic
example was given by Sophocles in his tale of Antigone. King Creon’s edict
forbade the burial of Polyneices, who had fought against Thebes; he was to rot
outside the walls of the city.
When Sophocles wrote in the 5th century B.C., burial
rites were a sacred duty. At dawn, Polyneices’ sister Antigone is spotted
outside the wall performing the rites. Captured and brought before Creon, she
admits the crime but utters words that might profitably be studied by legal
advisers to nations that embrace the rule of law: “I never thought your laws
had such force that they nullified the laws of heaven, which unwritten, not
proclaimed, can boast a currency everlastingly valid; an origin beyond the
birth of man.”
This ancient belief in a natural law that stands above
written law was ridiculed in the 18th century by the English philosopher Jeremy
Bentham, who called it “nonsense upon stilts.” Bentham’s view has mostly
prevailed, and it is his view of law that troubles the legal advisers to
President Obama as they seek to place military intervention on a sound legal
basis. While the attempt is praiseworthy, it may be misplaced.
Almost no one today defends what came to be called the
Natural Law tradition, yet it alone supports the “self-evident truths”
proclaimed in the American Declaration of Independence, or the affirmation in
the French Declaration of the Rights of Man that men are born free, or the
rights proclaimed in the 1948 Universal Declaration of Human Rights and those
in the European Convention on Human Rights. In short, it is a tradition to
which no one adheres but which stands as a live witness to the eternal human
desire for an absolute moral order.
If such an order does exist, there is no consensus as
to what it consists of. Yet there are instances in which nations have reached
unanimous agreement on a specific moral duty. The prohibition against the use
of chemical weapons is one such example. The Chemical Weapons Convention has
been signed and ratified by all but a handful of the 193 nations that are
members of the United Nations. Only Syria, North Korea, Egypt, Angola and South
Sudan have not signed, but even Syria does not claim that the use of chemical
weapons is legal.
Syria denies their use, but if it is found that Syria
committed the atrocity, then a legal justification to stop it is superfluous.
Once an atrocity is acknowledged, a moral duty arises to stop it — provided that
one has the power to stop it and can do so at no serious risk to oneself. Of
course to argue that no legal justification is needed is a slippery slope
because it is rare to find unanimous consent on the existence of a moral duty.
In the case of Syria there exists moral agreement that
the use of chemical weapons was an atrocity, and perhaps even that Syria
committed it, but no consensus will be reached about who should be the 21st
century Antigone who must go to Damascus, or what rites need be performed once
she gets there.
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Ronald Sokol is a member of the bar in France and the
United States and practices law in Aix-en-Provence. His books include “Justice
After Darwin” and “Federal Habeas Corpus.”
A version of this op-ed appears in print on September
3, 2013, in The International Herald Tribune.
http://www.nytimes.com/2013/09/03/opinion/global/antigone-in-damascus.html?ref=global&_r=0
