The land of his nativity, the shrine
Of his ancestral gods ... for Polyneices
This law hath been proclaimed concerning him:
He shall have no lament, no funeral,
But lie unburied for the carrion fowl
And dogs to eat his corse, a sight of shame.
The law which is here mentioned is not an archaic fossil recovered from an antique past. It is the law of ‘the mortal lawgiver’ which Plato gives and which we have already described.[89] Its application in this context implies that Polyneices was guilty of culpable fratricide, which in the special circumstances of the case has affinities with the crime of treason. Plato[90] gives a law which confirms this supposition. ‘If a brother,’ he says, ‘shall, in his own defence, during a fight occurring in a sedition, kill a brother while warding off the party who first had recourse to violence (τὸν ἄρχοντα), let him be considered free from guilt as he is who kills an enemy.’ In the laws of Dracon, also, as we know from the restored inscription and from Demosthenic quotations, the category of justifiable homicide included the slaying of the ‘first’ aggressor and of the ‘unjust’ aggressor.[91] According to our theory that Dracon codified existing laws but did not invent new laws, it would follow that Plato here refers to a very ancient and for a long time unwritten law of the Ephetae and the Exegetae. The attitude of Kreon to Eteocles is precisely that of the Platonic legislator. His attitude to Polyneices seems also, at first sight, to be legally correct, because Polyneices was technically the unjust aggressor. But the tendency of legislation concerning such cases is to condemn too swiftly, without due consideration and with a superficial examination of the facts. Such legislation assumes that a man must be either right or wrong, either wholly innocent or wholly guilty. Now we find it very difficult to conceive Polyneices as guilty of wilful fratricide. Before he became an ‘aggressor’ he had been banished from his country, because he refused to divide the throne with his brother Eteocles. Was not his expulsion a prior act of aggression? Perhaps therefore he can be regarded as fully justified[92] if one goes far enough back in one’s analysis of ‘aggression.’ But on such questions ‘justice’ is frequently a crude political hotchpotch even in the most civilised communities. We suggest that it is against such political ‘justice’ that Antigone in the play revolts. It is frequently asserted[93] that this play symbolises a conflict between religion and civil power; that Antigone and Teiresias champion the laws of the gods, while Kreon defends the laws of the State. But in ancient Greece there was ordinarily no distinction between Church and State. The State was identified with its gods. Treason was a kind of sacrilege; sacrilege was a form of treason. Again, it may be argued that the conflict between Kreon and Antigone symbolises an opposition between the State law which refused to traitors the privilege of burial, and the ancient Clan-law, according to which the burial of a dead kinsman was a religious duty, and its neglect a dangerous ‘sin.’ We regard this hypothesis as much more reasonable, but if it be pressed to its logical conclusions it compels us to see in the Antigone an exaltation of tribalism over State power, or otherwise to attribute moral weakness to Antigone. But we suggest that tribalism had evolved the custom of refusing burial to traitors long before the advent of centralised civic government. In this respect, therefore, tribal law and State law were in unison, not in conflict. Hence this hypothesis compels us to assume that in this play there is an exaltation of moral weakness. There are passages in the play which support this interpretation. Thus Antigone says[94]:
But had I suffered my own mother’s child,
Fallen in blood, to be without a grave,
That were indeed a sorrow.