Antigone and Creon, both defeated by the crisis of legality

Abstract

Justice and certainty -one impersonated by Antigone, the other by Creon- are the two values of law that have always been in conflict. The rigid constitutions following World War II resolved the conflict by imposing Creon; that is to say, ordinary legality, the principles of justice, though historically defined by Antigone as enshrined in the constitutions. Today, crisis of certainty and justice is equivalent to the simultaneous loss of both, Creon, due to the collapse of the regularity capacity of the law generated by the proliferation of sources of legislative inflation, and Antigone, due to the removal of the Constitution from the political horizon, just as powerless with regard to the global financial markets, as it is powerful in the diminishing of the welfare state and the right of individuals. A rational response to the crisis today requires the development of the constitutionalism of private law, so as to impose limits and controls on market rights, that our tradition has configured as “freedom”, but which consist of “powers” for which rigid subjection to the law is required in order to protect the fundamental rights and property of all.