Creon's Ghost: Law, Justice, and the Humanities. By Joseph P. Tomain. New York: Oxford University Press, 2009. 320 pp. $75.00 cloth.

Abstract

Creon's Ghost: Law, Justice, and the Humanities. By Joseph P. Tomain. New York: Oxford University Press, 2009. 320 pp. $75.00 cloth. Joseph Tomain's Creon's Ghost is an episodic meditation on a longstanding legal conundrum: whether (and if so, how) positive law is subject to override by some form of higher law. Tomain's project is to explore rather than to solve this problem, and in the process, to integrate the wisdom of the humanities with the theory and practice of the law. ''Creon's ghost'' is a metaphor representing the inevitable conflicts that arise between positive law and higher law, together with the haunting question of how one should respond to positive law that one regards as unjustFthat is, as inconsistent with one's conception of higher law. The nub of the problem at the heart of Creon's Ghost is this. Positive law is easily ascertainable, but it is unsatisfying because it is not necessarily just. Higher law, by contrast, is grounded in principles of justice, but it is frustrating because it is highly contestable and ultimately indeterminate. Tomain's method in Creon's Ghost is to refine readers' understanding of the problematic relationship between positive law and higher law, and to begin a conversation between law and the humanities, by pairing humanities texts central to the Western tradition with works of legal philosophy and then using the insights gleaned from that comparison to understand a variety of constitutional law decisions of the U.S. Supreme Court. Tomain begins, appropriately enough, with the tragic conflict between Creon (representing positive law) and Antigone (representing higher law) in Sophocles' Antigone. He pairs Antigone with H. L. A. Hart's exposition of legal positivism in The Concept of the Law, which denies any challenge to positive law based on higher law notions of justice. The conflict in Antigone, of course, ends badly for both Creon and Antigone, and this portends the larger tragedy: High stakes attend the conflict between higher law and positive law, yet a satisfactory resolution of the conflict is beyond one's reach. Tomain builds on Antigone chronologically, analyzing the apparition of Creon's ghost in Plato's philosophy, with special emphasis on the ''Allegory of the Cave'' from the Republic (paired with Ronald Dworkin's writings on legal philosophy); Aquinas's theory of natural law (paired with modern theories of natural law); Machiavelli's The Prince (paired with legal realism and critical legal theory); Harriet Beecher Stowe's Uncle Tom's Cabin (paired with Robert Cover's Nomos and Narrative); Oliver Wendell Holmes Jr. …