"Law Like Love"--The Timid Analogy

Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyway:
Like love I say.

Here, finally, is Auden's tentative and timid conclusion. Law is like love.

In understanding Auden’s likening of the Law with Love, one must understand what Auden means by love. Love in this context is neither a particularized eros or philia, but a universal agape that manifests itself in a particular love of neighbor.[i] The love is what Auden (quoting Simone Weil) defined as “belief in the existence of other human beings as such.”[ii] Indeed, it is more; it is, as Kirsch put it, the recognition of other men’s “existence as themselves to be of infinite value.”[iii] And yet, this is not some generalized, universal love of mankind, but a close, intimate, and personal love of a neighbor. This is the absolute radical notion of Auden, and perhaps the most beautiful message of his poem: that Law, like love, must be personal, and that it stems from the depths of man’s heart. Like the universal injunction to love one neighbor as one’s self, the Law applies to our neighbor however it be that we find him, whether “dumpy” or “tall.” That is, Law like love reaches to each man in his personal uniqueness.

[T]he law, like love, is concerned (so Auden believed) with personal uniqueness, not with political generalization. Unique persons fulfill the law by loving—which can be done by unique person only—and they fail to understand the law when they fail to love.[iv]

The love Auden tenuously ties with Law and which is mentioned by Kirsch is that same Agape which Auden experienced in a mystical vision, an epiphany, which occurred to the twenty-six-year-old atheist Auden in the Summer of 1933, and whose imprint remained with Auden the remainder of his life. As Auden himself described it in prose:

One fine summer night in June 1933 I was sitting on a lawn after dinner with three colleagues, two women and one man. . . . We were talking casually about every day matters when, quite suddenly and unexpectedly, something happened. I felt myself invaded by a power which, though I consented to it, was irresistible and certainly not mine. For the first time in my life I knew exactly—because, thank to the power, I was doing it—what it means to love one’s neighbor as oneself. . . . I felt their existence as themselves to be of infinite value and rejoiced in it.
* * * *
I recalled with shame the many occasions on which I had been spiteful, snobbish, selfish, but the immediate joy was greater than the shame, for I knew that, so long as I was possessed by this spirit, it would be literally impossible for me deliberately to injure another human being. I also knew that the power would, of course, be withdrawn sooner or later and that, when it did, my greeds ands self-regard would return. . . . . The memory of the experience has not prevented me from making use of others, grossly and often, but it has made it much more difficult for me to deceive myself about what I am up to when I do.[v]

Auden described this experience, this encounter with Agape, in his earlier poem, A Summer Night:

Now north and south and east and west
Those I love lie down to rest;
The moon looks on them all,
The healers and the brilliant talkers,
The eccentrics and the silent walkers,
The dumpy and the tall.[vi]

Auden appears to invoke the Kantian categorical imperative that we must treat each man as an end in himself, and never as a means. It is the recognition of the other as our brother, and, as such, our equal and one worthy of our love, that overcomes convention and mere legal positivism as the supreme basis of Law.

Only because of that can we say
All men are our brothers,
Superior, because of that,
To the social exoskeletons.

So wrote Auden in the poem “Sext,” part of his “Horae Canonicae,” and the “social exoskeletons” he wrote about include the notion of “Leviathan, the Social Beast,” composed of variously of the tyrant, the ideologue, the masses, or the mob.[vii] The potentially oppressive majority, the sometime tyranny of Democracy, had been rejected by Auden as a source of Law in “Law, Like Love.”

Auden’s final peroration, which will be the subject of our last blog entry on this poem, addresses the lack of integrity or union between the ideal and the actual in both Law and love, a division caused by the wound of selfishness, of sin, man suffers since the Fall. For man who is "faulted," failure to abide by the Law, like our failure to abide by Love, does not disprove either the existence of Law or the reality of Love. Indeed, our breach proves their reality, and our need of both Law and Love.

[i] But see Jeffrie G. Murphy, Law Like Love, 55 Syracuse L. Rev. 15, 18 (2004) (suggesting that by love Auden had philia or eros in mind and not agape).
[ii] Kirsch, 4 (quoting Auden, A Certain World: A Commonplace Book (New York: Viking, 1970), 283). By this time, Auden appears to have rejected a materialistic understanding of love. The love in this poem is substantially different from that described in his poem “September 1. 1939” as a “lie.” (“Hunger allows no choice / . . . We must love one another or die.”) Mendelson, Later Auden, 75. “Auden later recoiled from this view of love as involuntary mutual need rather than as voluntary mutual forgiveness.” Id.
[iii] Kirsch, 13 (quoting Auden in Edward Mendelson, ed. Forewords and Afterwords (New York: Random House, 1973), 69-70). Mendelson observes: “In Auden’s vocabulary, history and love were words with double senses. There was love and Love, the first a voluntary relations between individuals, the second the involuntary evolutionary Eros that rules all of nature but in mankind has abdicated to the personal will.” Mendelson, Early Auden, 304. However, by the time Auden wrote this poem, he had advanced from his early Marxist and Freudian notions to a more traditionally Christian notion of Love.
[iv] Mendelson, Later Auden, 79.
[v] Mendelson, 160-61, quoting Forwards and Afterwords, 69. Auden continued: “And among the various factors which several years later brought me back to the Christian faith in which I had been brought up, the memory of this experience and asking myself what it could mean was one of the most crucial, though, at the time it occurred, I though I had done with Christianity for good.” Id. at 161.
[vi] “A Summer Night,” in Collected Poems, 117; Mendelson, Early Auden, 159-61.
[vii] Kirsch, 126-27.

"Law Like Love"--What "Is" the "Law That Is" Can't Be Answered

If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,
No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.

Yet the urge, the “universal wish” to try to fathom or understand, in a manner of speaking to “guess” at the meaning of Law, is no less real than the certainty of our death and our need to understand what mystery exists beyond our earthly existence (“slip out of our position/Into an unconcerned condition” = death).[i] The epistemological issue which puts into doubt knowledge notwithstanding, we are not allowed the luxury of burying our heads in the sand with respect to either Law or Death. These are two realities, two givens of the human condition, which warrant attention and demand an answer, however tenuous, incomplete, or riddled by mystery. And we are compelled to try to understand these mysteries without succumbing to the hubris that we can comprehend them completely (i.e., “timidly”). We must, in other words, recognize that our understanding of Law partakes in the same sort of understanding of our minds when it comes to understanding God. We only understand darkly, through the use of imperfect analogy (“timid similarity”), and in a sort of negative, tentative way.

And with all these caveats, these limitations, Auden then turns to his theory of law. He will not answer the question, "What is Law?" but he will answer the question, "What is Law like?"

[i] Fuller, 251.

"Law Like Love"--The Law Is

If we, dear,[i] know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this,

Awareness that there is a distinction between human and natural or eternal law, that moral law that speaks to each individual in his heart or conscience, is what leads Auden to avoid the false definitional equations of Law (“Law is . . .”). The concept of Law cannot be grasped by a direct copula, but can only be gleaned analogically, by simile or metaphor (“Like love . . .”). Though Auden knows that “Law is,” that it exists, he dare not comprehend Law, like he dare not comprehend Love, or what is the same thing, God. He can only speak timidly, using timid similarities. Si comprehenderis no est Deus, stated St. Augustine. Auden’s message is analogous: Si comprehenderis non est Lex. That means the Law is, like God, a mystery.

These stanzas serve as the copula or intermezzo between that part of the poem that related the false theories--what we have denominated "myths" of the law--to that part of the poem in which Auden expresses what is the best answer to the question of what Law may be. And he comes to the conclusion that Law can be understood only by way of analogy. In this regard he is solidly in the camp of the Catholic St. Thomas Aquinas and the pagan Cicero.

There is no doubt that Auden believes that the understanding that an overriding Law exists is universal: “Except that all agree . . . / That the Law is, / And that all know this.” This notion is all is very Pauline, and echoes St. Paul’s letter to the Romans who teaches that those who do not recognize either Moses or Christ know nevertheless “that the requirements of the law are written on their hearts, their consciences also bearing witness, and their thoughts now accusing, now even defending them.” (Rom. 2:15). The knowledge may be suppressed. The knowledge may be affirmatively denied. And yet, the knowledge is there, deep within, as if in germ. In his poem “September 1, 1939,” Auden had written the following lines, though they were removed from the typescript when the poem was published in The New Republic. They leave no doubt about Auden’s nascent Christianity.

What can I do but recall
What everyone knows in his heart,
One Law applies to us all . . . .[ii]

Though Auden is certain that the Law is universal, and is also universally known to exist, consistent with his early, subjective and existential Christianity, Auden appears to plead a sort of agnosticism when it comes to the specifics or determinations of that Law. This agnosticism, however, must not be equated with a pure moral relativism. Though Auden’s conversion to Christianity was still in process when he wrote this poem, by this time Auden appears to have accepted the need for absolutes, or Kierkegaardian “unconditionals.[iii]”

One of those unconditionals was the acceptance of the Fall. One had to believe that man was, as Auden put it in his “New Year Letter,” “Man faulted.”[iv] However, at this stage in his life, Auden seems inconsistent and confused. Departing from the teachings of St. Paul, who lists a number of sins that are contrary to the natural moral Law, Auden appears to plead an agnosticism of detailed knowledge of the Law’s content, as distinguished from knowledge of the Law’s existence. With respect to knowledge of the Law’s specific content—its precepts, its commands, its prohibitions—Auden claims no man can claim superiority, no man knows more than another as to what we should do and not do. It is unclear how consistently Auden believed in any moral absolutes when he penned these words.

Ironic Kierkegaard stared long
And muttered “All are in the wrong,”[v]

as he wrote, in a deprecating tone, in his “New Year Letter.”

Because of man’s moral shortcomings and because there is no one who can judge among men, Auden appears to suggest that a certain mutual tolerance is required.[vi]

Indeed, the act of owning up to this state of moral agnosticism is the basis of moral equality political democracy. No man is morally superior to the other, and no man has a right to rule over another. In the New Year Letter, Auden links theses:

And all that we can always say
Is: true democracy beings
With free confession of our sins.
In this alone are all the same,
All are so weak that none dare claim
“I have the right to govern.” Or
“Behold in me the Moral Law,”
And all real unity commences
In consciousness of differences,
That all have wants to satisfy
And each a power to supply.[vii]

The struggle to find the “base” for Democracy, in other words the fundamental Law, which recognizes moral unconditionals was the work of our time.[viii] In this regard, Auden seems to fail us, to disappoint us. He seems to have despaired on the ability to find a universal law, a Natural Law in the fullest sense of the term. It is perhaps here that his besetting sin, his homosexuality, prevented him from approaching the light and the truth that God had in mind for him.

[i] Auden seems to use the term “dear,” in his poetry to express the turning from the universal to the particular. He is now turning his eyes upon us to talk, tête-à-tête, as it were.

[ii] Mendelson, Later Auden, 76. According to Mendelson, the reference to the Law that applies to all in “September 1, 1939” “operates at a level of generality that ignores individual persons,” whereas that in “Law Like Love” considers “the acts and velleities of individual persons, not of large historical movements.” Id. 78-79.
[iii] Auden had encountered the notion of the “unconditional” in Kierkegaard from a book entitled The Descent of the Dove by the Anglican Charles Williams. Auden wrote a poem, “The Maze,” which speaks of “wingless man” (anthropos apteros) who wallows in this world in absurdity without a sense of the “unconditional” or absolute. Auden, Collected Poems, 303-04. See Mendelson, Later Auden, 124-26; 129-30.
[iv] Auden, “The New Year Letter,” in Collected Poems, 227.
[v] Auden, Collected Poems, 231.
[vi] Mendelson, Later Auden, 130. The thought was taken from Kierkegaard through Williams. As Mendelson observes, it is quite consonant with the Scriptural concept that we are all sinners, a concept found in the Gospels, St. Paul’s letters, and in the Psalms.
[vii] Auden, “New Year Letter” in Collected Poems, 241.
[viii] Auden wrote to his friend and fellow poet Stephen Spender (1909-1995) in April/May 1940: “The basis weakness of democracies is the failure to realize that if you give up Catholicism—and I think we must—one has to discover one’s base again and that is a very long and exhausting job.” Quoted in Mendelson, Later Auden, 142.

"Law Like Love"--11th Myth--Idiocracy

And always the soft idiot softly Me.

The "soft idiot" who advocates the "softly" Law of Me, or selflaw, is clearly not a reference to the “counsel of one” of Heraclitus. It is not the martyr who alone against the powers of the world in communion with his unseen God confronted the fury of the Roman Empire when he refused to participate in the cult of the emperor, the religion of the State. It is not the Jew, who, as one who had a homeland separate from the Fatherland, was viciously treated by the Third Reich and whose flesh bore the brunt in the Shoa for a world wed to materiaism and practical, if not expressly avowed, atheism. This is not Athanasius contra mundum.

Auden’s reference to the “idiot” invokes the Greek roots of the word—idios—meaning personal, private, one’s own.[i] The “idiot” is a man who refuses to acknowledge his duty to the universal, as Kierkegaard phrased it. It is Kantian construct of a man who is himself law, relishing in full and complete autonomy. It is our modern American. Yet this moral nominalism is not conducive to life in common nor, in the end, in happiness.

Here all, by rights, are volunteers,
And anyone who interferes
With how another wills to fight
Must base his action, not on right,
But on the power to compel;
Only the “Idiot” can tell
For which state office he should run,
Only the Many make the One. [i]

The soft idiot--advocate of selflaw--shows himself in myriad forms: in the solipsistic misanthrope, the effete member of the intelligentsia who thinks himself superior to the masses, a libertine with an overweening emphasis on individualism and moral license, the zealous laissez faire capitalist who cannot brook a limit on his profit whatever havoc he may wreak upon the body social, the anarchist whose doctrine bears within it the seeds of its own inanity and its own destruction, the rabid feminazi who hates the products of her body and the other half of mankind. These “idiots” are quirks among men who want to universalize the quirk, and marginalize the normative. These soft idiots think that by departing from the crowd they ipso facto are clever and who sometimes forget that even the crowd, the simple, the commoner, the peasant who eats potatoes, may be in the right. For these, however, government serves not to advance the common good, but to protect their right to be "idiots," to be selflaw.

This idiotism in law also trickles down to idiotism in our culture. This idiotism shows itself in uncouthness, a dumbing down of culture, arising from an overemphasis of individuality, a demand from creativity from people without genius, and therefore a shallow creativity. Its paradigm is someone like Paris Hilton. It is—in a most ironic sense—a crass, simplistic form of mannerism without rules. Anomie becomes mannerism, becomes rule. Conceit, false sense of being “original” when one is nothing but common and hackneyed and altogether predictable and tedious Bohemianism.

No, none of these myths present adequate answers to Auden, though there is no doubt in his mind that Law exists, and, because the Law exists, law is found in myriad times and places, and without it—or its father—custom, man would not be man. For he is a social animal and not, except in rare exception, a hermit, and must needs live in common. Auden’s landscape view of the many myths of Law yield nothing satisfactory.

There is another place to which he must turn.

[i] Auden, “The New Year Letter,” in Collected Poems, 229.
[i] See http://www.etymonline.com/. (s.v. “idiot”).

"Law Like Love"--10th Myth--Vox Populi Vox Legis

And always the loud angry crowd,
Very angry and very loud,
Law is We,

This is the answer of the social contractists, the Rousseaus of this world, those that idolize Democracy as if it were the God. For these, Law is an expression of the general will that amorphous thing called the “majority,” and the general will or the majority determines, in the final analysis, right and wrong. Who otherwise is there one can appeal to?

This is the spirit behind Francis Fukuyama's The End of History and the Last Man, which viewed the imminent success of Western-style liberal democracy as the end and culmination of mankind's ideological evolution, a secular beatific vision or nirvana from which no further progress could be envisioned.

If the authority of one cannot make Law for another of his equals, then how can the authority of many? The will of one can be tyranny; the will of many can be an aggregate tyranny. The theories that place the source of authority in an aggregate group of men or in their democratically-elected appointee cannot explain authority of the Law. Based on his nature, one man has no claim to authority over another except through an exercise of power. Nothing added to nothing makes nothing, even if added a hundred times, and so the apologetics behind democracy’s legitimacy is not explicable as a source of Law.

The crowd is unruly, and most often gets its unthinking way, because it is always very angry and very loud—after all, contrary to moral authority which speaks in the silent voice of conscience, the clamor of the crowds does sum. That is why there is power in a crowd. But the crowd is not all there is, for Auden notes that there is another power. To say that the general will determine right and wrong, and there is no appeal from it, also ignores that great heritage of Heraclitus, who is his fragments states that it is sometimes law to obey the counsel of one.[i]

[i] Heraclitus, frag. 110.

"Law Like Love"--9th Myth--Anarchy and Anomie

Others say, others say
Law is no more,
Law has gone away.

The Anarchists claim there is no more law. Auden has no patience for the anarchists, perhaps the first modern advocate of which being William Goodwin, who was married to the ur-feminist Mary Wollstonecraft, and was father of Mary Godwin (also known as Mary Shelley, the author of Frankenstein and wife to Percy Bysshe Shelley).


When at Swarthmoure in the 1940s, Auden wrote an article for the Phoenix in which he noted that though power corrupts, anarchism is to simplistic an answer to that problem. In Auden's view, Government, like it or not, is a necessary evil. And in a November 15, 1971 interview Auden stated in response to a question as to whether he thought that all artists are politically anarchists:

Basically I think this is true. It depends on what you mean by anarchism. Obviously, as a political doctrine anarchism won't work because you are always going to have some kind of regime. The idea you can have a state with no regime at all is obviously nonsense. I think we are all anarchists to some extent. We know some regime is going to be, and none of them is going to be very nice, and at any given point you feel one is the lesser of two evils. The other meaning is embodied in a certain technique which I learned at school which was how to do what you wanted without getting into trouble with the authorities.

Though in a manner of speaking all of us (not only artists) are anarchists (sin is nothing but rejection of the Natural Law, and so a form of moral anarchy), this anarchy is for most of us temporary or not systemic. Perhaps only the pathologically insane, a sociopath or psycopath, are fully moral anarchists. Most of us are anarchists only in part.

But the perception that there ought not to be law and ought not to be a State is impossible to entertain. Governance is required for the common good. So Auden viewed the Marxist notion that the idea would whither away into a benevolent anarchy as "clearly nonsense." (see http://www.swarthmore.edu/library/auden/1971e.html)

From the Anarchists, Auden then turns to the myth of the Democrats, who divinize the majority.

"Law Like Love"--8th Myth--Law as State Power

Others say, Law is our State;

Like so many of his generation, Auden was deeply affected by the rise of the Fascist political philosophy, even though he impulsively rejected it. In particular, Auden experienced first-hand that expression of Fascism found in the Spanish Falangists. No less troublesome, and perhaps a great deal more troublesome, was the Fascism of the the German Nazis and the lemming-like attitude of ordinary citizens who “made no pretense of believing in justice and liberty for all, and attacked Christianity on the grounds that to love one’s neighbor as oneself was a command fit only for effeminate weaklings, not for the ‘healthy blood of the master race.’”[i] Auden consistently distrusted the State as the source of value and Law, for he knew that the State could not nurture the spiritual component of man; it rather tended to sacrifice it.

For without a cement of blood

(it must be human, it must be innocent)

no secular wall will safely stand.

Auden wrote in the poem “Vespers,” part of his Horae Canonicae, in 1950s.[ii] Though it was the mature Christian Auden that held this attitude, it was one he carried over unchanged from his days of unbelief.

Even the unbelieving Auden felt that the State tended toward self-idolatry or idolatry of mammon. The threat such tyranny presented as the basis of law was historically ubiquitous and always a temptation for man. This anti-state animus is certainly present in that Auden who flirted with materialisms and anarchism. The disdain for the Leviathan of Hobbes is found, for example, in Auden’s “Letter to Lord Byron”:

Against the ogre, dragon, what you will;
His many shapes and names all turn us pale,
For he’s immortal, and to-day he still
Swinges the horror of his scaly tail.
. . . .
Whenever [man] endorses Hobbes’ report
“The life of man is nasty, brutish, short,”
The dragon rises from his garden border
And promises to set up law and order.[iii]

In his early years of the Christian chapter of Auden’s life, the distrust of the State looms large:

If we are never alone or always too busy,
Perhaps we might even believe what we know is not true:
But no one is taken in, at least not all of the time;
In our bath, or the subway, or the middle of the night,
We know very well we are not unlucky but evil,
That the dream of the Perfect State or
No State at all,
To which we fly for refuge, is part of our punishment.
Let us therefore be contrite but without anxiety,
For Powers and Times are not
gods but mortal gifts from God.[iv]

But the distrust of the State as the source of law remained true even of the Auden of the “later years—the avuncular, domestic, conservative, Horatio, High Anglican poet of civilization,”[v] who, in his poem “The Garrison,” states:

Whoever rules, our duty to the City
is loyal opposition, never greening
for the big money, never neighing after
a public image.

As he put the question that political philosophy forced upon him:

Unless one was prepared to take a relativist view that all values are a matter of personal taste, one could hardly avoid asking the question: ‘If, as I am convinced, the Nazis are wrong and we are right, what is it that validates our values and invalidates theirs?’[vi]

From the advocates of a tyrannous law, Auden turns to the anarchists, the utopians, who blithely advocate a concept of Law that simply is untenable. They are perhaps the Flatworlders of jurisprudence, and that may be why none can seriously entertain such views and must only say that others say . . . .

[i] Kirsch, 21-22, 187 n. 22.
[ii] Auden, “Vespers,” Collected Poems; Mendelson, The Early Auden, 20.
[iii] “Letter to Lord Byron,” in W. H. Auden, Collected Poems, 95.
[iv] Auden, “For the Time Being,” Collected Poems.
[v] Edward Mendelson, The Early Auden (Cambridge: Harvard University Press, 1983), 19.
[vi] Kirsch, 22; see also Mendelson, Early Auden, 306.

"Law Like Love"--7th Myth--Determinism

Others say, Law is our Fate;

This short stanza refers to those who predicate law on materialistic philosophies of a deterministic or fatalistic strain, in particular those established on philosophical Marxism or social Darwinism. During his younger years, Auden adopted such materialistic philosophies, as he hankered after a better future that was bound willy nilly to come. He told his elders: “Go down with your world,” which inexorably, “had had its day.”[i] According to the Marxist philosophy to which Auden subscribed in the 1930s, it was fated that world would end in violence, and from the ashes of that violence, like a phoenix, a new world would rise.

Yesterday the belief in the absolute value of Greece, . . . .
But to-day the struggle,

wrote Auden, in the poem “Spain” in 1937 written during the end of his brief flirtation with communism which started in the early 1930s.[ii] It was a poem which, along with his adoption of Communist political theory, he was later to reject.

Auden was deeply unsettled at the destruction and the boarding up of the churches in Spain and the absence of clergy when visiting Barcelona in 1937 during the Spanish Civil War.[iii] He recognized that the forces of the Left and Liberalism were equally bereft of justice and prone to propaganda. It was there that he confronted the sour fruit of a materialist philosophy, that of Marxism, whose doctrine included the principles of historical and economic determinism. Marx’s atheistic fatalism was no less ironclad and exceptionless than Calvin’s warped and equally wrong theistic version of predestination. All forms of fatalism—atheistic, agnostic, theistic—were eventually to be spurned by Auden.

What, then, about the power of the State, the sovereign, the Hobbesian “Mortal God on Earth”? Could this be the source of Law? That is the view of some advocates, as Auden next observed. It was a view, however, that through all of his stages he always spurned. Auden had a natural aversion to the powerful central State.

[i] “I have a handsome profile,” from the English Auden, 123, quoted in Mendelson, The Early Auden, 144.
[ii] Auden’s Communism, like his Christianity was to be, was idiosyncratic, as he was too much ensconced with the bourgeoisie and its privileges to abandon it for the working class. His ties to Communism were, in any event, informal as Auden never joined the Communist party. Mendelson, The Early Auden, 137-39. As Auden later put it: “Looking back, ti seems to me that the interest in Marx taken by myself . . . was more psychological than political; we were interested in Marx in the same way that were interested in Freud, as a technique of unmasking middle-class ideologies. . . . Nobody I know who went to Spain during the Civil War who was not a dyed-in-the-wool stalinist came back with his illusions intact.” Quoted in Mendelson, Early Auden, 307.
[iii] Kirsch, 22; Mendelson, Later Auden, 91. Auden observed this in supposedly Republican Spain, i.e., the Spain whose government was supposed to be based upon Liberalism.

"Law Like Love"--6th Myth--Law Merely Convention

Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.

In the next stanzas, Auden refers to the apologists of the legal positivism or legal realism as practiced by the judge mentioned in the stanzas immediately before. The judge’s view of law is not a common one, that is, it does not find support in the hearts of men. It must rely on the sophistry of the scholars, on a hyper-intellectuality that ignores the reasons of the heart. These sections of “Law, Like Love” are a clear reference to positivism in its classic sense, an almost direct reference to John Austin (1790-1859), the father of legal positivism, who sought to separate law and morals. “The existence of law is one thing; its merit and demerit another. Whether it be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.”

Austin and his successors such as Holmes and his ilk were able to revolutionize the public philosophy behind our law beginning in the 1860s. Austin's positivism was viewed as unsophisticated, and was given great polish by H. L. A. Hart. Everything is convention, a matter of style, a matter of no greater moment or lastingness than the latest fashion—whether to wear a medieval doublet or a Greek chiton. Or as Holmes put it one's notion of natural right is equally as significant as to whether one happened to enjoy beer, granite rocks, or barberry bushes.[i] The notion of Natural Law is just a brooding omnipresence, a philosophy to be ridiculed, Holmes caricatured. Nonsense on stilts, as Bentham scoffed. Whorish baggery, knavery is what Giordano Bruno thought of it.

Law is as superficial as the convention of saying “Good morning,” or “Good night,” veneer salutations that have nothing to do with the worship of God that drives the prayers of Matins and Compline. It must be far removed from penitent’s pounding of the breast and his deep-felt cry of Mea culpa, mea culpa, mea maxima culpa. Have these modern day sophists, in refusing to grapple with the mystery of law and caricaturing it as nonsense, replaced alleged nonsense with greater nonsense, a whore for an inflatable sex doll? Apparently, Auden thought so, for he does not linger any longer with this myth that all law is convention, and it cannot serve as the basis of his poetic gaze. He spurns it, and so he turns, with but briefest of glances, to those who posit Law based upon a historical or other determinism.

[i] Holmes, “Natural Law,” Collected Legal Papers, 311.

"Law Like Love"--5th Myth--Legal Positivism

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I’ve told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

Here is the explanation of law given by the positivists, the legal realists, the theoretical or practical secularists. Modernly, their name is legion, and they command the academic field, there possessed by a spirit that leaves God, and therefore love, out of the Law. They are the exact secular counterpart of the “priests,” but their explanation of law is even more shallow and inadequate than that of the religious positivist. For the religious positivist at least points to a reality outside of the law itself upon which to found it. The positivist looks only to the law to justify in a miserable circular argument that endlessly says nothing. Ultimately, because it is so banal, the theory of law must reside on power, and hence it leads to idolatry of power. The soft and supple touch of conscience has no role in law; law does not warmly woo; law drily demands.

The positivist notion of Law is based on power and not authority, as the State has rejected the Pauline notion that it exercises authority in God’s name. Nor is it based upon the Pauline notion of the reasons of the heart, law is not something that man discovers; it is something he makes for himself, and in fashioning it is not governed by any authority outside himself. The secularist is blinded by the Freudian notion of the soul, a philosophical nominalism, and the Darwinian view of nature, and so rejects the notion of an end, a design, a telos in nature at large and, in particular, the nature of man. The secularists, then, reject the notion of a Law above and a Law within. Without God and without conscience, only power talks. The judge “looks down his nose,” and speaks “most severely,” certainly more harshly than the priest who speaks with a “priestly look,” and whose words are simply ignored. It rules by symbols of power: the judge cannot look down his nose unless he looks down from his raised bench. He speaks severely, without kindness; he relies on positive commands, on external punishment and sanction, and not on moral suasion. It is a Thrasymachian view of the Law, and the same as held by Thucydides. As Auden wrote in his poem, "September 1, 1939":

Exiled Thucydides knew
All that a speech can say
About Democracy,
And what dictators do,
The elderly rubbish they talk
To an apathetic grave;
Analysed all in his book,
The enlightenment driven away,
The habit-forming pain,
Mismanagement and grief:
We must suffer them all again.

This, of course, is a reference to Thucydides's classic historical work, The History of the Peloponnesian War, specifically, the Funeral Oration of Pericles and its encomium of Democracy found in Book Two, and the Melian dialogue described in Book Five, where the Athenian belief that “might makes right” should govern.

This law works obedience on the people not by internal compulsion of conscience, but by power. And yet, not only power, but also by propaganda (“Law is as I’ve told you before”).[i] This phrase is redolent of the famous phrase, attributed to Joseph Goebbels, Hitler’s Minister of Propaganda: “Repeat a lie often enough and the people will believe it,” or the similar one attributed to Vladimir Lenin: “A lie told often enough becomes truth.” There is also a certain element of ridicule involved in stifling dissent: “as you know I suppose,” suggesting that the person who insufferably suggests that there is a “Higher Law,” which the judge or legislator must recognize is a fool, whereas the unthinking subject who simply accepts the propaganda though it is based upon an untenable philosophical quandary is not.[ii]

The answer of the judge belies his ignorance, as it is a classic fallacy, a petitio principii, a begging the question. One is reminded of this circular reason in Oscar Wilde’s De Profundis:

Dear Friend, a man who has studied law to its highest degree is a brilliant lawyer, for a brilliant lawyer has studied law to its highest degree.

In fact, when it all comes down to it—and the judge is disrobed of his trappings of power and propaganda—the judge’s response is a meaningless tautology: “Law is the Law.” He appears as absurd, as clownish, as the judges painted by Rouault, caparisoned in their accouterments of power, which are nothing but childish vanities on an empty shell of a man. They are the powder and rouge of fallen women, the grease paint and red nose on a clown.

And yet, the judge’s tautology cannot be so frankly stated to the public, and so they recruit the brains of academia. An Auden focuses his gaze there in the next stanzas of his poem.


[i] Mendelson suggests this is a reference to the notion of stare decisis or legal precedent. Mendelson, Later Auden. Auden frequently wrote ambiguously so as to allow for more than one manner of interpreting his words.
[ii] “Law is as you know I suppose” may also be a reference to the doctrine of ignorantia juris non excusat, ignorance of the law does not excuse. The judge “suppose[s]” that the defendant “know[s]” the law. Again, this would be consonant with Auden's ubiquitous ambiguity.

"Law Like Love"--4th Myth--Fundamentalists and Fideists

Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.

Law, fulminates the fideistic ecclesiastic, the imam from his pulpit distrustful of Reason, revolves around revealed truth, and so is found exclusively in revelation, in a “priestly book.” In the West, the “priestly book” is most certainly the Christian Bible. Or perhaps the Law is found in the cleric’s extrapolation and musings on the “priestly book,” that is, the authority of the sermon which comes to the people from the high pulpit. Finally, perhaps the Law is to be found in the institution of the church, its dogma, represented by Auden through the synecdoche of the steeple.

In these stanzas, Auden appears to tie together and reject both Protestant and Catholic notions of Law. First, he objects to the notion of Law as Will as advanced by the Protestants. The objections do not appear to be specifically aimed at whether the theories of Law advanced by Christian theorists within their ecclesiastical communities is true, but whether they are of any practical use in a time and place where there is no longer any belief in such ecclesial structures, i.e., whether they have any practical application among an “unpriestly” people.

One of the points Auden appears to advance is that under the Protestant theories Reason, in all events, is not to be found in Law, and so the “unpriestly people,” especially the unbelievers, do not comprehend it. What is advocated here by the “priest” is law based upon revealed authority alone, Law as Will, with no relation to Reason. Ultimately, what is espoused is a fideistic or voluntaristic notion of Law, a divine positivism, which is as objectionable as a human positivism, since both essentially say that Law is will, whether the will be that of a human or divine legislator. By and large, Auden refers to the Protestant conception of law, inasmuch as most Protestants rejected the natural Law, a Law based upon Reason, and relied instead on religious positivism for their source of Law. This is the teaching of Luther and Calvin, and, by and large, the inheritance of Protestantism, which rejected the Catholic notion of the Natural Law. Law under this notion becomes inscrutable to Reason. It is a product of Fiat, and demands an unreasonable (or unreasoning) consent.

Auden placed the blame of modern society’s ills at the threshold of the Cathedral at Wittenberg.

Accurate scholarship can
Unearth the whole offence
From Luther until now
That has driven a culture mad
Find out what occurred at Linz,
What huge imago made
A psychopathic god:
I and the public know
What all schoolchildren learn,
Those to whom evil is done
Do evil in return.[i]

As Auden had written earlier in his one-act play The Dance of Death completed in August 1933:

Luther and Calvin put in a word
The god of your priests, they said, is absurd.
His laws are inscrutable and depend upon grace . . . .[ii]

Equally, we could point to the Muslim rejection of the natural law and its notion of Law as Divine Will and say,

Law, says the imam with an imamish look,
Expounding to those who are not the ulama,
Law is the words in my Quran,
Law is my minbar and my mosque.

For Auden, the revealed will of God alone is not a sufficient foundation of Law, for how then can we expect obedience from the unbelievers, from the “unpriestly people,” from those that are not of the household of Faith? Thus, such a fideistic theory of law has both practical and theoretical flaws.

Historically, such a theory of the Reformers, which allowed for no common basis for law, was to lead to the Wars of Religion, the temporary respite in the formula cuius regio eius religio, and finally to the French Revolution and an atheistic or pseudo-atheistic Liberalism.

It is significant to point out that Auden was just beginning his venture into Christianity when he wrote this poem. As Anthony Hecht puts it in a vivid image borrowed from Auden himself, Auden’s Christianity in late 1939 and early 1940 was like Moses’ view of the Promised Land, that is, Auden had only a “Pisgah view of distant salvation.”[iii] In entering his incipient life as a Christian at the time Auden wrote this poem, he had not accepted any communal or ecclesial notion of Christianity and, though he had a felt need for an Unconditional or Absolute, it did not rely on any creed or communal worship. His Christianity was existential, subjective, and not tied to any creed or ecclesial communion. Though later he was to recognize the important of communal worship, and that led to his formal reception into the Episcopal Church, this was not his attitude in 1939 and 1940. Thus, though Auden recognized the Protestant reformer’s historical role in disassembling the Western order, he did not envision in any sense a return to Catholicism. His point was that the West had to discover its “base,” and one that did not rely on the rejected Catholicism of the past. He rejected the institutional Church, and, adopting an extreme Augustinianism, he appears to advocated the Protestant notion that man after the Fall remained in God’s image, but not in His likeness (i.e., suffered from depravity), and so had lost the faculty of recognizing the Natural Law. This was contrary to the Catholic teaching (which he called Thomist) that man remained made in both God’s image and likeness, though born in a state of original sin and needing God’s justice and grace to bring him back into a full relationship.[iv] The faculty in man was not so ruined by the Fall that he was unable to use reason to grasp the natural moral law, though, in practice, because of weakness of will, bad habits, ignorance, or failure to use right reason, man often failed to abide by the natural moral law.

“The basic weakness of the democracies is the failure to realize that if you give up Catholicism—and I think we must—one has to discover one’s base again and that is a very long and exhausting job.” Auden opined that the modern democracies were like a “lazy protestant living off the fat of his Catholic past and imagining that metaphysics and mysticism are unnecessary—the virtues will be kept alive by good form.” [v]

Perhaps also Auden makes reference to the precursor of the Christian dispensation, the Jewish Priest and the Jewish Law. In the poem “For the Time Being,” Auden has the narrator say:

Where is the Law for which we broke our own,
Where now that Justice for which Flesh reign
Her hereditary right to passion, Mind
His will to absolute power? Gone. Gone.
Where is that Law for which we broke our own?[vi]

Auden was fascinated by the communal aspects of Judaism, and, for a time, attracted by the communal aspects of Judaism, he even contemplated a conversion to Judaism. But Auden would have recognized that there is no merit in imposing the demands of the Torah on an unbelieving, stiff-necked people. Like the Star beckoned the Magi, more is required to patch up the disorder in the West than “orthodox sophrosyne.”[vii]

Auden then directs his attention to yet another myth of Law; one which begs the question; one which seems particularly tautological.

[i] Auden, “September 1, 1939,” This is the interpretation given by Hecht. See Hecht, The Hidden Law, 157. In support, Hecht quotes Auden’s introduction to a five-volume anthology entitled Poets of the English Language co-edited with Normal Holmes Pearson: “[T]he publication of Luther’s ninety-five Theses in 1517 . . . end[s] five centuries of uninterrupted humanism during which the energies of European civilization were directed towards making the whole of reality universally visible to the physical eye or to the eye of reason, on the assumption that there was no truth, however mysterious, that could not be objectified in an image or a syllogism. This humanistic period begins with Anselm’s ontological proof of the existence of God . . . . [and] remains secure until Luther.”

[ii] Quoted in Mendelson, Early Auden, 269. The final stanza addresses how the Reformation fideism ultimately led to classical economic liberalism of Adam Smith: “So laissez-faire please for the chosen race.”

[iii] Hecht, The Hidden Law, 244. The attributive noun Pisgah refers to mountain summit in the land of Moab, in the territory of Reuben, where Balak offered up sacrifices, and, more importantly, from which Moses viewed, but had not yet entered, the promised land. See Num. 21:20; 23:14 and Deut. 3:27.

[iv] Mendelson, Later Auden, 484 (note). Mendelson states: “Catholics, following Aquinas, argued that an analogia entis remained, a likeness between God and man that enabled humanity to recognize natural law.”
[v] Mendelson, Later Auden, 143 (quoting from a letter to Spender dated April or May 1940).

[vi] Auden, Collected Poems. “The refrain lines, the first and the last, suggest that in the deluded hope of being saved by orthodox religious law, the people of Israel had surrendered either the voice of private conscience of the mores and regulations of secular society. And the invocation of Flesh, contrasted with Mind, should recall a similar opposition of the same faculties, represented by Rousseau and Plato, in the New Year Letter.” Hecht, The Hidden Law, 255.

[vii] Auden, Completed Poems. Sophrosyne means right or prudent reasoning.

"Law Like Love"--3rd Myth--Progressives and Liberals

The grandchildren put out a treble tongue,
Law is the senses of the young.

The grandfather—symbol of the wisdom of the old or of the past—is not the only one whose answer is rejected by Auden. Similarly the grandchild—symbol of the progressive, liberal, and seemingly unmoored and tinkering reformer—has an ideal of law that is equally objectionable. The treble tongue of the grandchildren referenced by Auden has an ambiguity in it.[i] It is treble in the sense that it is high-pitched, immature, a symbol of the fickleness and shallowness typical of youth. The voice of the young who reject the traditions of their elders lacks the depth and the reliability of the basso continuo. It is also treble in the sense of triple; the triple tongue being perhaps a reference to a serpent that traditionally was pictured as having a triple tongue, an ore trilingui.[ii] In advocating their senses as the foundation of law—law based on emotivism[iii]—and rejecting the role of practical reason and the traditions of their elders in the construction of their law, the youth, i.e., moderns, speak the words of the devil. Law as custom or tradition, viewed by moderns as antiquated, and rejected by our world which—since (seminally) the Renaissance and Reformation and (expressly) in the Enlightenment—has rejected the Aristotelian notion of virtue and man as a political animal. The result has been a subjectivism and relativism in ethics and, by extension, in law, which is well-nigh crippling in terms of dialogue and moral consensus and progress. (MacIntyre)

If both the traditions of the elders and the emotivism of youth are inadequate sources of Law, then where do we go? To Revelation? To the Church? To a Theocracy?

[i] Ambiguity is a recurring feature in Auden’s poetry. Anthony Hecht, The Hidden Law: The Poetry of W. H. Auden (Cambridge: Harvard University Press, 1993), 10.
[ii] Cf. Horace, Book III, Ode XI, v. 20; Book II, Ode XIX, v. 31.
[iii] Emotivism in ethics (also known as the emotive theory) is the meta-ethical theory that value judgments—which include moral judgments and by extension law—do not state facts, but, are rather merely expressions of emotions. The philosophical “father” of emotivism in ethics is G. E. Moore (see, e.g., his Principia Ethica and Ethics). and the theory was popularized by A. J. Ayer in his book Language, Truth and Logic. As Alasdair MacIntyre defines it: “'Emotivism is the doctrine that all evaluative judgments and more specifically all moral judgments are nothing but expressions of preference, expressions of attitude or feeling, insofar as they are moral or evaluative in character.” Alasdair MacIntyre, After Virtue (Notre Dame Press), 10-11. The theory is clearly horribly subjective, rejects the principles of an objective ethics, and thus precludes any rational discussion on ethics, right and wrong, and the true and the good. It results in “Children afraid of the night / Who have never been happy or good.” Auden, "September 1, 1939"

"Law Like Love"--2nd Myth--Traditions of the Elders

Law is the wisdom of the old,
The impotent grandfathers feebly scold;

These “impotent grandfathers” are reactionaries who base the law on the customs of the ancients, who want to undo the present and return to times past. In Auden’s view, this represents an abandonment of reason and prudence, and relies on an ideology, a dogma that insists that everything old or done in times past is ipso facto good.

Auden calls this unthinking, reflexive conservatism “impotent.” Law based upon pure senectitude, the flaccid holding of times past, and not on Reason. This is not the wisdom of the ancients applied and adopted to new circumstances. This is not a vision of Law based upon a virile or perenially-true philosophy, but a vision of Law that borders on the doddering babblings of a feeble senility, a view of Law that suffers from sclerosis. That, at least, is how Auden refers to its advocates.

One cannot help but think that Auden, in these short two verses, refers to the criticism of the Benthamite Sydney Smith (1771-1845),[i] as found in his Fallacies of Anti-Reformers, and adopts them as his own:

Our Wise Ancestors—The Wisdom of Our Ancestors—The Wisdom of Ages Venerable Antiquity—Wisdom of Old Times.—This mischievous and absurd fallacy springs from the grossest perversion of the meaning of words. Experience is certainly the mother of wisdom, and the old have, of course, a greater experience than the young; but the question is who are the old? and who are the young? Of individuals living at the same period, the oldest has, of course, the greatest experience; but among generations of men the reverse of this is true. Those who come first (our ancestors) are the young people, and have the least experience. We have added to their experience the experience of many centuries; and, therefore, as far as experience goes, are wiser, and more capable of forming an opinion than they were. The real feeling should be, not can we be so presumptuous as to put our opinions in opposition to those of our ancestors? but can such young, ignorant, inexperienced persons as our ancestors necessarily were, be expected to have understood a subject as well as those who have seen so much more, lived so much longer, and enjoyed the experience of so many centuries? All this cant, then, about our ancestors is merely an abuse of words, by transferring phrases true of contemporary men to succeeding ages. Whereas (as we have before observed) of living men the oldest has, caeteris paribus, the most experience; of generations, the oldest has caeteris paribus, the least experience. Our ancestors, up to the Conquest, were children in arms; chubby boys in the time of Edward I; striplings under Elizabeth; men in the reign of Queen Anne; and we only are the white-bearded, silver-headed ancients, who have treasured up, and are prepared to profit by, all the experience which human life can supply. We are not disputing with our ancestors the palm of talent, in which they may or may not be our superiors, but the palm of experience in which it is utterly impossible they can be our superiors. And yet, whenever the Chancellor comes forward to protect some abuse, or to oppose some plan which has the increase of human happiness for its object, his first appeal is always to the wisdom of our ancestors; and he himself, and many noble lords who vote with him, are, to this hour, persuaded that all alterations and amendments on their devices are an unblushing controversy between youthful temerity and mature experience!—and so, in truth they are—only that much—loved magistrate mistakes the young for the old, and the old for the young—and is guilty of that very sin against experience which he attributes to the lovers of innovation.

****

What was the wisdom of the single age which enacted the law, compared with the wisdom of the age which proposes to alter it? What are the eminent men of one and the other period? If you say that our ancestors were wiser than us, mention your date and year. If the splendor of names is equal, are the circumstances the same? If the circumstances are the same, we have a superiority of experience, of which the difference between the two periods is the measure. It is necessary to insist upon this; for upon sacks of wool, and on benches forensic, sit grave men, and agricolous persons in the Commons, crying out: “Ancestors, ancestors! hodie non! Saxons, Danes, save us! Fiddlefrig, help us! Howel, Ethelwolf, protect us!” Any cover for nonsense—any veil for trash—any pretext for repelling the innovations of conscience and of duty![ii]

Yet Auden’s criticism of the knee-jerk conservative view of law as tradition does not put him in the camp of the progressives or liberals or Benthamites who seem to advocate of change for change’s sake, and give no weight to inherited customs which often define a people. This is clear from the two immediately following verses to which we next turn.

[i] Sydney Smith, an English clergyman, eventually became prebendary of Bristol and Canon of St. Paul’s. He was considered to be one of the cleverest men of his age. In one of his many works, Smith reviewed Jeremy Bentham’s Book of Fallacies: From the Unfinished Papers of Jeremy Bentham. Notably, Auden was editor of, and wrote an introduction to, a book of selected writings of Sydney Smith, and so would have been intimately familiar with him. See W. H. Auden, ed. Selected Writings of Sydney Smith (London: Farrar, Staus & Cudahy, 1956).
[ii]http://smith.classicauthors.net/FallaciesOfAntiReformers/FallaciesOfAntiReformers1.html.

"Law Like Love"--1st Myth--Materialists and Hedonists

Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.

The first myth of Law, which is not Auden’s view and is the first general theory he implicitly criticizes, is that of the “gardeners.” Who are these gardeners to which Auden refers? The noun “gardeners” may be a reference to the school of the materialistic and hedonist Epicureans, followers of the ancient Greek philosopher Epicurus of Samos (341-270 b.c.). Like Plato, who established his Academy, Aristotle, who established his Lyceum, and Zeno who established the Stoa Poikile, Epicurus formed his own school that was called The Garden. The inscription at the gate that led to The Garden according to Seneca read “here our highest good is pleasure.”[i] Good and evil were defined by a cost/benefit analysis of pleasure and pain, and justice defined in a social-contract sense of a compact neither to harm nor be harmed. Epicurus taught that the gods were unconcerned with the affairs of men, and so should have no bearing on the formation of laws.

It is doubtful that Auden intended to focus on the Greek Epicureans. Surely, Auden’s gardeners include the modern disciples of Epicurus. The hedonist, atomist notions of Law of Epicurus have enjoyed a modern resurrection. One may find the ancient Greek doctrine in Liberal robes in the consequentialists or utilitarians or their predecessors, such as Hume, Bentham, and Mill, who advanced passion, or pleasure (or avoidance of pain) as the principle of morality, and hence of law. This has had a particular resurgence in the "Law and Economics" group, perhaps the most significant advocate being Judge Posner. This hedonistic ghost was also taken by Locke who robed it in traditional natural law clothes, and through Locke it came to Jefferson, and through Jefferson it made it into our traditions as one of our jurisprudential inheritances. There it meshed like an uneasy patch on the traditional notions of natural law that were part and parcel of the common law and the philosophical inheritances of a (Graeco-Roman) Classical and Roman Catholic past.

Law is the sun which guides the seasons, and which we cannot fight, the Law which we are compelled to obey. We must not resist this Nature but submit to her, as Epicurus might say.[ii] But this Nature is not one with a design, a telos or end under the guidance of a Providential and personal God who is transcendent; ultimately, it is the Nature of a clock fashioned by (at best) the impersonal Deist God whose cogs and wheels we are; or perhaps the nature of Chaos, that is, of the random order of chance in a universe which knows no God. Fate, moira (μοῖρα), is what's behind it all, including law. "The sun will not transgress its boundaries; otherwise, the guardians of Justice, the Furies, will find out," says Heraclitus. Herac. fr. 94. After all, Epicurus was, like many of our modern philosophers, an atomist who rejected the immortality of the soul and the providence of the gods. Without a meaningful nature to guide them, they are materialists or individualists, perhaps the followers and children of Voltaire, who in his Candide, had his hero tend to his own garden.

After such a passing glance at the hedonists and materialists, Auden then turns his gaze upon the traditionalists.

[i] Seneca, Epistle XXI.
[ii] Cf. Vatican No. 21.

"Law Like Love"-Introduction

Pace Holmes, that brilliant ideologue and jurist, and his influential Path of the Law which spurned all forms of mystery in Law,[i] there remains all the same a certain mystery in Law. The mystery of Law rises to greet us when we try to define what Law is, when we try to grapple with the philosophical ideal behind Law, that is, universal Law or a related concept, the end or telos of Law. This enigma even faces us when we tackle something simpler, such as trying to fathom the central case of human law, that is, the definition, behind the many forms or variants of law that are found among the communities of mankind. It is also there when we try to formulate the argument as to why and when, if at all, human laws demand our respect, that is, bind us in conscience.

The halls of academia and the annals of history are strewn with the corpses of legion theories on what Law is, or in some cases, theories that doubt that there is any Law at all. Modernly, many of the theories advanced by philosophers and legal scholars sound flat. Under the banner of being scientific or philosophically rigorous or neutral, they are practically atheistic and amoral; they are hopeless and dull, do not inspire the imagination, much less obedience. They never talk about love.

Modern efforts appear wholly to ignore what may be called the vertical component of Law. Invariably, the modern theorists reject traditional concepts of natural moral law which embrace the notions of God, that we are made in his image, and that he has ordered his creation, that is, nature—including our own—, with a purpose and design which informs us of His will, and which ought to be respected. The modern theories of jurisprudence avoid the hard questions by definitional léger de main, skirting by the role that God or our status as creatures with a given nature might play in the understanding Law. Inspired by a philosophical nominalism or by philosophical existentialism, they base their premises on there being no such thing as nature that ought to constrain our radical liberty; existence precedes essence, and our nature is what we want it to be. Though complex, and presented in prolix, technical prose, these modern theories, despite a surfeit of sophistication, have a bland even sour aftertaste. Most fail to justify how Law binds us and why. The majority espouses some sort of positivistic philosophy that shuns the question of how Law is related to the moral and spiritual life of man; that majority is impatient with the distinction and the analogy between human law and human morals, and so they cut the corpus callosum between the two to simplify their task. As if to ignore the massive overlap between the two.

While modern theories ignore the vertical component of the question of Law, they do not neglect what may be called the horizontal component of the question of Law. The horizontal component focuses on the question of the interaction between individual and community. Here the field is commanded by a liberalism, whether economic or moral, which emphasizes the individual at the expense of the community, liberty at the expense of order, rights at the expense of duties. The emphasis in the individual results in but a little voice given to the communitarian aspects of human life which may constrain rampant individualism: the institutions of marriage, of family, inherited culture and traditions, and the needs of the greater community, i.e., the common good.

The answer to the question of what Law is seems to be found in that boundary between reason and mystery, between nature and convention, between matter and spirit. Like all things authentically human, the law participates in a dual life, both heavenly and mundane, individual and communal. So perhaps it is moderns’ refusal to countenance mystery in its various jurisprudential theories that lead to their one-dimensional blandness.

It was precisely this blended land of mystery and reason where Law’s meaning is to be found that intrigued the poet, Wystan Hugh Auden (1907-1973), and led to his thoughtful and insightful poems he wrote in 1939 and 1940: “Law Like Love,” “The Hidden Law,” and “New Year Letter.”[ii] Those poems were written when Auden was crossing the threshold: away from the materialistic communism he had espoused into the Christianity of his parents that he had rejected in his youth.[iii] In that poem, and a companion poem, “The Hidden Law,” Auden distinguishes between human or positive law and the natural Law, a theme he also treated at great length in his collection of poems entitled The Double Man, especially in the poem “New Year Letter.”[iv] In these poems, Auden’s message is that, because Law interacts with matters human and divine, and individual and communal, one cannot say “Law is” anything; rather, one must recognize the mystery in Law and speak analogically. At best one can say “Law [is] like” something. Auden adopts the Isaiahan or Pascalian image of the mysterious, hidden God—the hidden God, the Deus absconditus of Isaiah and Pascal—in his encounter with the mystery of Law. For Auden, Law participates in the very life of the divinity and so shares in his mystery. Law is a Lex abscondita, a hidden Law. Auden’s message is Augustinian: Si comprehenderis non est Lex. If you understand it by equating it with a copula is and not by an imperfect analogy, you have misunderstood it. Law is like love. Law is mystery. Law is both in the heart of one man, and in the midst of the group.

“Law, Like Love” is a poem broken into two clear sections. The first explores the various false theories, the myths as it were, of Law. The second and final part of the poem ends by offering its own very personal and yet universal solution to the concept of Law.

[i] E.g., O. W. Holmes, The Path of the Law 10 Harv. L. Rev. 457 (1897) reprinted in Oliver Wendell Holmes, Collected Legal Papers (New York: Harcourt, Brace & Howe, 1920), 167. “When we study law we are not studying a mystery . . . .” Auden might respond with Galileo’s quip: Epur si muove, and yet it does. As Profesor Vining has put it: “Law has not accepted the spirit of the age that (in Keat’s words) would climb an Angel’s wings and empty the haunted air.” Joseph Vining, The Authoritative and the Authoritarian (Chicago: University of Chicago Press, 1986), 5, 39.
[ii] W. H. Auden, “Law Like Love,” “The Hidden Law,” and “New Year Letter,” in Collected Poems (New York: Vintage International, 1991), 262-64, 264, 199-243. (Edward Mendelson, ed.). When published in the collection The Double Man, the poem “New Year Letter” was accompanied by significant notes which are not published in the Collected Poems. See W.H. Auden, The Double Man (New York: Random House 1941), 75-162. “Law Like Love” was dated September 1939. “The New Year Letter” was completed between January and April 1940. “The Hidden Law” was dated Autumn 1940. Though published (untitled) as a note to “The New Year Letter” in The Double Man, “The Hidden Law,” also appeared under the title Aera sub Lege in 1945. See Collected Poems, 905. These were close to Auden’s formal reception into the Anglican Church in 1940. Arthur Kirsch, Auden and Christianity (New Haven: Yale University Press, 2005), xiii. Though stemming from a family bristling with Anglican clergymen, Auden lapsed at 13, only to re-acquire his faith about twenty years later. Kirsch, 6. However, though Auden’s Christianity matured after his initial return, at this time his transformation was in its infancy. Mendelson described it thus: “[Auden’s] beliefs took the form of a lonely existentialist Protestantism quite unlike the communal rituals of the Anglo-Catholicism he had abandoned at fifteen.” Mendelson, Later Auden, xviii. Auden gradually accepted the more ritualized and traditional Anglo-Catholicism. But both in terms of faith and morals, however, Auden’s Christianity was always highly idiosyncratic, and unfortunately suffered from both a lack of orthodoxy and moral integrality. For example, he expressed reservations, even hostility, to the doctrines of the Virgin Birth and Immaculate Conception. Kirsch, 44. He also appears to have adopted a Patripassion view of Christ’s suffering, and harbored doubts about the Resurrection. Kirsch, 4, 174. Though he struggled with it (calling it “crooked love”) and sought to understand its origin, rationalize it, or even overcome it, see, e.g., Mendelson, Early Auden, 59, at the end of the day he never appears to have reconciled his homosexuality with the moral teachings of the Church and the Scriptures that proscribed such misuse of the sexual faculties. There is a certain scandal that can be placed on his feet. He was not chaste, and had multiple lovers, and at least one reasonably long-term homosexual relationship (with a man called Chester Kallman) he even considered to be “marital.” Mendelson, Later Auden, 43 ff. Later in life, he appears to have developed a firmer notion of homosexuality’s moral wrongness. Kirsch, 172-73. His failure to overcome it remains a very unfortunate blot on this moral poet’s life, and one that has to be considered in assessing his work.
[iii] At the time he wrote the poems “Law Like Love,” “The Hidden Law,” and “New Year Letter,” Auden’s Christianity was incipient. His Christianity was influenced by the writings of Søren Kierkegaard, and was one very subjective in its emphasis. It shunned dogma and the need to be in communion with an ecclesial body. Auden later learned the value of the communal life in the life of a Christian, and joined the Episcopal Church.
[iv] John Fuller, W. H. Auden: A Commentary (Princeton: Princeton University Press, 1998), 250.

"Law Like Love"

While we wait on the remaining articles relating to Ecstasis and Telos and Levering's book (I do have to practice law), I'll post W. H. Auden's poem entitled "Law Like Love," and some reflections on it I wrote some time ago. The poem was published in a book of poems entitled Another Time. Commentary will follow.



Law, say the gardeners, is the sun,
Law is the one
All gardeners obey
To-morrow, yesterday, to-day.

Law is the wisdom of the old,
The impotent grandfathers feebly scold;
The grandchildren put out a treble tongue,
Law is the senses of the young.

Law, says the priest with a priestly look,
Expounding to an unpriestly people,
Law is the words in my priestly book,
Law is my pulpit and my steeple.

Law, says the judge as he looks down his nose,
Speaking clearly and most severely,
Law is as I've told you before,
Law is as you know I suppose,
Law is but let me explain it once more,
Law is The Law.

Yet law-abiding scholars write:
Law is neither wrong nor right,
Law is only crimes
Punished by places and by times,
Law is the clothes men wear
Anytime, anywhere,
Law is Good morning and Good night.

Others say, Law is our Fate;
Others say, Law is our State;
Others say, others say
Law is no more,
Law has gone away.

And always the loud angry crowd,
Very angry and very loud,
Law is We,
And always the soft idiot softly Me.

If we, dear, know we know no more
Than they about the Law,
If I no more than you
Know what we should and should not do
Except that all agree
Gladly or miserably
That the Law is
And that all know this
If therefore thinking it absurd
To identify Law with some other word,
Unlike so many men
I cannot say Law is again,

No more than they can we suppress
The universal wish to guess
Or slip out of our own position
Into an unconcerned condition.
Although I can at least confine
Your vanity and mine
To stating timidly
A timid similarity,
We shall boast anyvay:
Like love I say.

Like love we don't know where or why,
Like love we can't compel or fly,
Like love we often weep,
Like love we seldom keep.