Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Tuesday, June 30, 2009

Universal Ethic-Introduction 2

6. To explain the ethical foundation of the rights of the man, some, through the effort of dialogue between cultures and religions, have endeavored to formulate a "world ethic." The "world ethic" touts an ensemble of fundamental and obligatory values that for centuries have formed the treasury of human experience. These are found in all the great religious and philosophical traditions.(5) Such a worthwhile endeavor is an expression of the current need of an ethic that has universal and global validity. But can this purely inductive sort of search for a minimal consensus already existing, based upon a parliamentary model, satisfy the requirements for rights based on an absolute basis? Besides, doesn’t such a minimal ethic lead perhaps to the relativization of the strong ethical exigence one finds in every religion or particular wisdom?

7. For many decades the question of the ethical foundations of rights and of politics was put aside in some areas of the contemporary culture. Based upon the pretext that every demand for an objective and universal truth has been the source of intolerance and of violence, and that only relativism is able to safeguard pluralism of values and democracy, legal positivism, which refuses to refer to an objective and ontological criterion of what is just, has defended itself. From its perspective, the determinant of the right and of moral norms is the law then in place, which is considered right by definition since it is the expression of the will of the lawgiver. But the result of this is to open the road to the will of power, to the dictatorship of the arithmetic majority, and to ideological manipulation, all to detriment of the common good. "In ethics and in the present philosophy of right, the claims of legal positivism are largely present. The result is that legislation often becomes only a compromise between different interests; it tends to transform itself into the right of interests or private desires which oppose themselves to being derived from social responsibility."(6) But legal positivism is notoriously insufficient, since the legislator can work legitimately only within the specific limits that are derived from the dignity of the human person and to the service of the development of what is authentically human. Now, the legislator cannot leave the determination of what is human to extrinsic and superficial criteria, as it would do if, for example, it legitimized all that is feasible in the field of biotechnology. In short, the legislator should perform its task in an ethically responsible manner. Politics cannot ignore the ethical; nor can the the civil law and the legal order ignore the existence of a superior moral law.

8. In such context, in which the reference to objective values absolute and universally recognized became problematic, some, desiring to provide a rational base to common ethical decisions, have recommended an "ethics of conversation" along the lines of an understanding moral "dialogue." The ethics of this conversation consists in the use, during the course of any ethical debate, of only the rules able to be agreed to by all of the interested parties, and it requires the renouncing of any “strategic” behaviors designed to impose an actual point of view. In this fashion, the participants are able to determine if a rule of conduct, and of action, or a behavior is moral, since, leaving aside the cultural and historical contingencies, the principles of this ethical conversation offer a guarantee of universality and of rationality. The ethic of the conversation is interested above all in the methodology with which, through the means of this conversation, the principles and the ethical rules are able to be put to the test and to become obligatory for all of the participants. It is essentially a procedure to test the value of any proposed norms, but it cannot produce new substantial content. The ethic of the discussion is therefore a purely formal ethic, one than does not reach basic moral foundations. It runs also the risk of limiting itself to a search for compromise. Certainly, conversation and debate are always necessary to obtain a a workable accord on the concrete application of the moral rules in a given situation, but not at the expense of casting out moral conscience. A true discussion is not a substitute for personal moral convictions, but supposes them and enriches them.

9. Aware of the present state of affairs, in this document we intend to invite all those who question the basic foundations of ethics, as well as those of the legal and political order, to consider the resources that may be contained in a renewed presentation of the doctrine of the natural law. This doctrine affirms in substance that the persons and the human community are capable, with the light of reason, of recognizing the fundamental orientation of a moral act, as one which conforms to the very nature of the human subject, and one which is able to express it in normative manner in the form of precepts or of commandments. Such fundamental precepts, objective and universal, are considered to be the base and foundation of all subsequent moral determinations, legal and political, that regulate the life of the men and of the society. These constitute themselves as a permanent critical standard, and ensure the dignity of the human person confronting the fluctuation of ideology. In the course of history, in the elaboration of its own ethical tradition, the Christian community, guided by the Spirit of Jesus Christ and in critical dialogue with the traditions of wisdom which it has encountered, has proposed, refined and developed the teachings on the natural law so as to make it its fundamental ethical standard. But Christianity does not have a monopoly on the natural law. In fact, given that it is based on on the common reason of all of human beings, it is the basis of collaboration between all of the men of good will, regardless of their religious convictions.

(5) In 1993, some representatives of the Parliament of the Religions of the World proposed a public Declaration for a Global Ethic, that affirms that there "exists already between the religions a a consensus capable of founding a global ethic; a minimal consensus that pertains obligatory values, irrevocable norms, and essential moral tendencies." This Declaration contains four principles: 1) "No new world order without world ethics," 2) "Every human person is to be treated humanely." The principle behind the consideration of human dignity is that each human being is to be considered as an end in itself. Such a principle is a re-presentation of the "golden rule" that is present many religious traditions. 3) The Declaration formulates four irrevocable moral directives: non-violence and respect for life; solidarity; tolerance and truth; equality of man and woman. 4) With respect to the problems of humanity, a change in mentality is necessary, so that each person take conscience of the actual urgent responsibility. It is it up to the religions to cultivate such responsibility, to deepen it, and to transmit it to the future generations.
(6) Benedict XVI, Speech of February 12, 2007, to the International Congress Regarding the Natural Moral Law, Organized by the Pontifical Lateran University, in AAS 99 (2007) 244.

"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.

Monday, June 29, 2009

Universal Ethic-Introduction 1

As related in an earlier post, the International Theological Commission recently published its report, Searching for a Universal Ethic: A New Look at the Natural Law. The report may be found in French and Italian on the Holy See's web cite. Unfortunately, as far as I know, no plans exist to translate it into English. From time to time, I thought I would post translations of the Italian text into English. Be forewarned that the translation is not official, and my Italian translation skills are far from perfect.

International Theological Commission




Chapter 1: Convergences

1.1 The wisdom of the religions of the world
1.2 The Graeco-Roman sources of the natural law
1.3 The teaching of Sacred Scripture
1.4 The development of the Christian tradition
1.5 Further evolution
1.6 The teaching of the Church and the natural law

Chapter 2: The Perception of Moral Values

2.1 The role of society and of culture
2.2 The moral experience: "It is necessary to do good."
2.3 The discovery of the precepts of the natural law: universality of the natural law
2.4 The precepts of the natural law
2.5 The application of the common precepts: history of the natural law
2.6 The moral dispositions of the person and his concrete acts

Chapter 3: The Foundation of the Natural Law

3.1 From experience to theory
3.2 Nature, person, and freedom
3.3 Nature, man, and God: from harmony to conflict
3.4 Ways toward a reconciliation

Chapter 4: The Natural Law and the State

4.1 The person and the common good
4.2 The natural law, measure of the political order
4.3 From natural law to natural right
4.4 Natural right and positive right
4.5 The political order and the eschatological order
4.6 The political order is a temporal and rational order

Chapter 5: Jesus Christ, the Completion of the Natural Law

5.1 The "Logos" Incarnate, The Living Law
5.2 The Holy Spirit and the New Law of Freedom



1. Do moral objective values exist which unite mankind and offer it peace and happiness? What are they? How do we recognize them? How are they realized in the life of persons and in their life in common? These ever-present questions about right and wrong are more urgent than ever today in light of the fact that man has become more aware that he is part of a global community. Today, the great problems confronting human beings have international and global dimensions that arise from the development of the technologies of communication which allow for an increasing interaction between the persons, societies, and cultures. A local event can have a global repercussion almost immediately. For that reason, there has emerged an awareness of a global solidarity that finds its basic foundation in the unity of the mankind. This awareness translates itself to a sense of global responsibility. So the problems of the ecological balance, of the protection of the environment, of resources, and of climate present urgent concerns that raise questions that impact all of humanity, and whose solutions reach across national interests. Additionally, the threats presented by terrorism, organized crime, and other new forms of violence and of oppression weigh heavily on society and bring with them a global dimension. The rapid development of biotechnology, that at times threaten the very identity of the human being (e.g., genetic manipulation, cloning), urgently demands an ethical and political reflection of universal breadth. It is in such contexts that the search for common ethical values is actually being raised.

2. In their wisdom, through their generosity and sometimes by their heroism, men and women are living witnesses of such common ethical values. The deep admiration these persons engender in us is a first spontaneous sign of the existence of moral values. The reflection of academics and of scientists on the cultural, political, economical, moral, and religious dimensions of our social existence nourishes such belief in the common good of humanity. There are also artists that, in their presentation of beauty, react against the loss of this sense and renew the hope of human beings. Additionally, politicians work with both energy and creativity to carry out programs to eradicate poverty and to protect fundamental freedoms. In addition to these, one must add the very important and constant testimony of the representatives of religious and spiritual traditions which seek to live in the light of the ultimate truth and of the absolute good. All these contribute, each in its manner and in a reciprocal exchange, to promote peace, a more just political order, the sense of common responsibility, a fair distribution of wealth, respect for the environment, and the dignity of the human person and his or her fundamental rights. Nevertheless, these forces can only be successful as long their good intentions are based on a valid fundamental understanding regarding the goods and values that represent the deeper aspirations of the human being, both individual and public. Only the recognition and the promotion of these ethical values can contribute to the construction of a more human world.

3. The search for this common ethical language is a task for all men and women. For Christians, this task accords mysteriously with the work of the Word of God, "the true light, that illuminates every man" (John 1:9), and with the work of the Holy Spirit which causes to be born in human hearts "love, delight, calm, magnanimity, benevolence, goodness, faithfulness, mildness, self-dominion" (Gal 5:22-23). The Christian community, which shares "the joy and hope, the sorrow and anguish of the contemporary man" and "so feels itself really and intimately in solidarity with all mankind and with its history,"(1) is not able to support such common responsibility alone. Enlightened by the Gospel, pledged to engage in patient and respectful dialogue with all men of good will, Christians participate in the common search and promotion of human values: "What it is true, noble, just, pure, lovable, honored, what is virtuous, and what deserves praise, this should be the object of your thoughts." (Phil 4:8). They know that Jesus Christ, "our peace" (Eph. 2:14), who reconciled all men to God by means of the cross, is the deepest principal of unity toward which mankind is called to converge.

4. The search for a common ethical language is inseparable from an experience of conversion, wherein persons and communities must remove themselves from the forces that want to imprison human beings in indifference or push to raise walls between them or against the foreigner. The hard heart—cold, inert, and indifferent to one's neighbor and to mankind—must transform itself, under the action of the Spirit, to a heart of flesh,(2) sensitive to the call of wisdom, to empathy, to a desire for peace and hope for all. This conversion is the condition of a true dialogue.

5. There are no lack of contemporary efforts to define a universal ethic. After the end of World War II, the community of the nations, witnessing the results of the closely-bound relationship between totalitarianism and pure legal positivism, declared in the Universal Declaration of the Rights of Man (1948) some inalienable rights of the human person that transcend the positive laws of the States and should serve as their reference and norm. Such rights are not simply legislative grants conceded by the law-making authority: these rights, that is to say their objective existence, were declared to exist prior to any legislative authority, and were therefore manifest. They are derived in fact precisely from the "recognition of the inherent dignity of every member of the human family." (Preamble).

The Universal Declaration of the Rights of Man constitutes one of the more happy successes in modern history. It "remains one of the highest expressions of the human conscience",(3) and offers a solid base for the promotion of a more just world. Nevertheless, the results have not always reached hopes’ height. Some countries have disputed the universality of such rights, have judged them too Western, and these push for a more inclusive formulation. Others nations have exhibited a certain inclination to multiply the rights of the man, more as a function of the disorderly desires of the individual consumer or claims of a certain group, and not the objective requirements of the common good of humanity, and have therefore served to devalue them. Separated from the moral sense of values that transcend special interests, the multiplication of procedural and substantive juridical regulations leads only to a hollowing out of those rights, and in effect only serves the interest of the stronger. Above all, it reflects itself in a tendency to reinterpret the rights of the man by separating them from dimension of ethics and of reason, which constitutes both their foundation and their end, and so results in the benefit of a pure legal utilitarianism.(4)

(1) Vatican II, Pastoral constitution Gaudium et spes, intro. n. 1
(2) Cf. Ezechiel 36:26
(3) John Paul II, Speech of October 5, 1995, to the General Meeting of the United Nations on the Celebration of the 50th Anniversary of its Foundation, in Insegnamenti di Giovanni Paolo II, XVIII/2, 1995, Città del Vaticano, 1998, 732.
(4) Cf. Benedict XVI, Speech of April 18, 2008, Before the General Meeting of the United Nations, AAS 100 (2008) 335: "The merit of the Universal Declaration is that it has enabled different cultures, juridical expressions and institutional models to converge around a fundamental nucleus of values, and hence of rights. Today, though, efforts need to be redoubled in the face of pressure to reinterpret the foundations of the Declaration and to compromise its inner unity so as to facilitate a move away from the protection of human dignity towards the satisfaction of simple interests, often particular interests. . . . Experience shows that legality often prevails over justice when the insistence upon rights makes them appear as the exclusive result of legislative enactments or normative decisions taken by the various agencies of those in power. When presented purely in terms of legality, rights risk becoming weak propositions divorced from the ethical and rational dimension which is their foundation and their goal. The Universal Declaration, rather, has reinforced the conviction that respect for human rights is principally rooted in unchanging justice, on which the binding force of international proclamations is also based. This aspect is often overlooked when the attempt is made to deprive rights of their true function in the name of a narrowly utilitarian perspective."

"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.

Sunday, June 28, 2009

"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 . . .

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,”

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.

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.

Saturday, June 27, 2009

"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 (s.v. “idiot”).

Friday, June 26, 2009

"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.

Thursday, June 25, 2009

"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

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

Wednesday, June 24, 2009

"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.

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.

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.

Tuesday, June 23, 2009

"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.

Monday, June 22, 2009

"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.

Sunday, June 21, 2009

Ecstasis and Telos: Immanuel Kant and Selflaw

FOR A MAN THAT NEVER TRAVELED more than 100 miles from his home town of Köningsberg, the philosopher Immanuel Kant's (1724-1804) effect on the world of ideas was massive. With his publication of his Critique of Pure Reason in 1781, he effected what has been called the "Copernican Revolution" of philosophy. His contributions in the field of moral philosophy and law have likewise been immense. As Rommen puts it in his book The Natural Law, Kant was "the watershed from which flow so many and such varied streams of modern thought." Rommen, 83. If Kant's moral and legal philosophy found in such complex texts such as The Philosophy of Law, the Introduction to the Metaphysic of Morals, and his Critique of Practical Reason could be boiled down to a small kernel without serious injustice to the thought, it would be "autonomy," selflaw. Kant "exhibits in his philosophy the individualist natural law in its final, highest form,"Rommen, 88, but this law is so distilled of any notion of ecstasis and telos that it is no longer recognizable as law. It is the law one gives to oneself. It is absolutely autonomous, nay, more, it is anti-heteronomous, as it positively excludes any outside source of the law--even to the point of excluding Nature and Nature's God. Kant's morality is, in a way, the complete antithesis of Natural Law.

To understand Kant, one must recall Descartes's mechanistic view of nature and the Baconian rejection of a final and formal cause in nature. This is because, as Levering says, "Kant returns firmly to Descartes's project, which he advances." Levering, 117. Informed by philosophical nominalism, Bacon insisted that the notion of a final cause (or telos) in nature was a muzzle on true science that had to be discarded "The final cause rather corrupts than advances the sciences." Bacon, Novum Organon, aph. 3. Similarly, the notion of a formal cause, or an understanding of the "form" or "nature" of a thing, was useless. To exercise power over nature, man had to limit his analysis of nature to material causes only. "Matter rather than forms should be the object of our attention . . . ." Nature, as it were, had to be put to torture and put on the rack. Similarly, Descartes rejected the notion of a final cause. "The entire class of causes which people customarily derive from a thing's 'end,' I judge to be utterly useless in Physics." Descartes, Meditation 4. Matter was "dead," it had no principle of life outside mechanics that could be perfectly transcribed into mathematical equations. Coupled with this mechanistic view of nature was Descartes's extreme dualistic view of man, where man was a detached spiritual mind almost jailed in his material body. As a result of this deprecation of the body and the body/soul union, Descartes viewed the will and not reason as the preeminent human good. As he stated in a letter to Christina of Sweden:"Now freewill is in itself the noblest thing we can have because it makes us in a certain manner equal to God . . ." It was an apotheosis of will that proved regnant in Cartesian philosophy. So on the one side was a mechanical cosmos with no purpose, the res extensae, the extended order of things. On the other was the human mind or soul, the thinking thing or res cogitans.

Kant then stood on the shoulders of Bacon and Descartes. And there he was confronted with Hume's skepticism. It was Hume and his skepticism which "interrupted" Kant's "dogmatic slumbers." (Kant, Prolegomena to Any Future Metaphysics) Kant sought a means around the Humean skeptic fence that barred reason from knowing the good, and made reason slave to his passions. Kant's efforts at preserving the Cartesian mechanistic view of nature while yet overcoming Hume's radical skepticism required a severe restraint on reason, both theoretical and practical. Reason could not know the things in themselves (ding an sich), it only knew the appearances of the things in the mind as informed by sense data. "I had to do away with knowledge," Kant said in his Critique of Pure Reason, "to make room for faith." Kant may have better said "emasculate" or "amputate" Reason. And what kind of faith did he allow for?

In the area of morality, three notions were placed outside of pure reason's grasp by Kant: freedom, the immortality of the soul, and the existence of God who will reward the good and punish the evil. Kant maintained that none of these could be proved by reason (as they could also be disproved), and in his famous antinomies, Kant both proves and disproves the existence and non-existence of these three truths. So Kant shows with equal rigor that the world had a beginning in time, and no beginning in time. Through reason, Kant shows that it can be argued that the world is both made of composite substances made of simple substances, and that no composite substance is made of simple substances. He shows that there is free will, and that there is not free will, but all things are fastly determined. Kant argues that there must be a necessary Being, and then again that no such Being exists. Kant's point in his antinomies is not that these things don't exist, but that they are beyond the pale of reason. To accept them required faith. We had to act "as if" the soul was free and immortal, and there was a God who rewarded good and punished evil (als ob ein Gott sei), as if there were a reason or an end though, in fact, we must disabuse ourselves of the belief that these can be gleaned by reason. The God of Kant's faith was safely insulated from Reason's and the World's assault, and from Hume's skepticism, but that meant that God had only a presence in human consciousness and not in the worlds of Nature and Reason. For Kant, the cosmos is without God, and God is without being, an emasculated God. God is only in our minds. This is not the God to which we pray, "I believe, help Thou my unbelief!" It is a God that is marginalized, compartamentalized, housed in a Ghetto. (Unfortunately, once confined to our minds, this God in our minds becomes very pliable, as we shall see.)

So God deftly out of the way: "What is to be done, if the will is free, if there is a God, and if there is a future world?" asks Kant. (Kant, Critique of Pure Reason). The answer is given in Kant's moral philosophy, and Kant here applies as radical a critique as he did in regards to theoretical reason. First, Kant rejected any role of human nature in determining good and evil. Kant rejected the role of natural inclinations or desire for happiness as containing anything of importance to the question of the good. In fact, these inclinations and desires worked against the preeminent determinant of good: a good will informed by duty alone. In an effort to overcome Hume's guillotine (his "is"-"ought" argument), Kant jettisoned Nature like he did Reason. For Kant, a good will is most pure when it goes against inclinations or desires. It is most pure when it follows a categorical imperative: "Do this!" and not a conditional imperative, "If you want to be good or be happy, do this!" (Kant, Groundwork of Morals)

For Kant, therefore, (and like any good Cartesian) morality is solely within, in the will. In Kant's view, the human will has two main components. First, it is a self-caused movement. Second, it is a rational power that uses universal concepts. Accordingly, the purity with which the will moves itself (outside of any inclination or desire) and the universality of the rational imperative is what makes the will good. For Kant, the chiefest universal law is what he called the "categorical imperative." "Act only according to the maxim by which you can will at the same time that it becomes a universal law." (Kant, Groundwork of Morals) The categorical imperative is the highest law because it is pure command and most universal. It references no matter, no nature, no happiness, not even God; it is pure and uncorrupted.

When the will acts in accordance with the categorical imperative, the human will will reject any other law outside of the imperative. Duty is solipsistic. It looks towards itself, it never looks outside itself, it judges for itself. Therefore, the will legislates for itself. We have the law of one. The will, to be free and good, must become autonomous. "The will is not simply subject to the law, but subject in such a way that it must also be considered as self-legislative and for this reason, at the very first, subject to the law whose author it can consider itself to be." (Kant, Groundwork of Morals) Therefore the person is autonomous, not heteronomous. A person must be like a greek city--a polis--that issues its own laws out of its own sovereignty (auto-nomos), and not a city that relies on another city with jurisdiction to issue laws (hetero-nomos). The person must act in accordance with the imperative (autonomy) unmoved, uninfluenced by any desire or inclination for good or evil encountered in external experience (heteronomy). As Michael Waldstein summarizes it:
I am autonomous when I will what I will without being motivated by any good or evil, that is, when I move myself according to the categorical imperative. I fall into heteronomy when I will something because it is good. In heteronomy, I degrade my will and make it a servant of my internal desires. I reach autonomy and freedom only when my will is completely independent from the whole sphere of appearances based on received sense-data, 'for, independence of the determining causes of the world of sens (and independence which reason must always claim for itself) is freedom.'
Waldstein, 50 (quoting Kant, Groundwork of Morals).

Well that certainly takes care of Hume. But at what expense?

As Pierre Manent summarizes it: "At last [man] can think what until that time he could only will: he can now think that he is neither a creature of God nor a part of Nature, that he is in short born of himself, the child of his own liberty." (Manent, The City of Man (Princeton: Princeton University Press, 1998), 189 (quoted in Levering, 119 n. 178). According to Kant, a rational being achieves greatest dignity when it "obeys no law except the law which it simultaneously gives to itself." Kant, Groundwork of Morals. Autonomy and freedom are the highest goods, not obedience to a law that is wise or good or that may lead us to happiness or union with God. Thus in a masterful sophistry, Kant baptizes as the good autonomy and its necessary concomitant: disobedience to any externally-imposed law. More, because each person is completely autonomous, each deserves dignity, and each becomes his own law, and his own end:
For what end (quem in finem) does [man] exist? His existence has the highest purpose in itself . . . It is only in man, and in man only as the subject of morality, that an unconditioned legislation concerning purposes can be found, which thus enables him alone to be a final purpose to which the whole of nature is teleologically subordinated.
(Kant, Critique of Judgment) Waldstein summarizes what Kant has proposed: "Each and every person is the final end of the whole of nature. There are as many final ends as there are persons." Waldstein, 51-52. This principle of autonomy is also reflected in Kant's political philosophy, which views government's task not as promoting any good, but as protecting autonomous individual's rights. Government's role is not to promote the happiness of its citizens, but to promote the rights of its citizens. Government is no-wise to be paternal (imperium paternale); rather, it is to be patriotic (imperium non paternale, sed patrioticum). Pace George F. Will, Statecraft is not Soulcraft. Indeed, counterintuitively, the "greatest despotism imaginable" is a government that desires and promotes the good of its citizens, more despotic, presumably, that a government which does not intend the good of its citizens, but rules them for its own ends. Waldstein, 52-53.

The distance of Kant's moral philosophy from that of Natural Law and Scripture is at once apparent. Indeed, as Waldstein notes, Kant's notions of autonomism and disdain of any dependence contradict the very heart of The Lord's Prayer: Pater noster, qui est in caelis, . . . fiat voluntas tua . . . panem nostrum quotidianum da nobis hodie . . . Our Father, who art in heaven . . . thy will be done . . . give us this day our daily bread . . . . The Lord's Prayer implies a heteronomous relationship with God in which we find freedom; we are not our own, but both our beginning and our in are in God. One wonders how sincerely Kant prayed the Vater Unser, one wonders if he could without wincing.

It is Kant to whom credit is given for separating law and morals, ethics and law, by separating law and its external compulsion from notions of the inner freedom or moral autonomy of the individual person. Rommen, 88-89. This separation was so severe, that for Kant "[t]he legal order is devoid of moral character." Rommen, 90. As Pierre Manent puts it:
[Man] flees the law that is given to him and seeks the law he gives himself. He flees the law given to him by nature, by God, or that he gave himself yesterday and that today weights on him like the law of another. He seeks the law he gives himself and without which he would be but the plaything of nature, of God, or of his own past. The law he seeks ceaselessly and continuously becomes the law he flees. In flight and in pursuit, with the difference of these two laws always before him, modern man proceeds in this way to the continual creation of what he calls History. In this enterprise, the nature of man is his principal enemy.
Manent, 204 quoted in Levering, 120, n. 178.

We could perhaps adapt Kipling's famous words in his "Ballad of East and West": Oh law is law, and morals is morals, and never the twain shall meet. The excessive separation between law and morals has led more than one person, even such redoubtable and diverse thinkers such as Ayn Rand and Hannah Arendt, to link Kant's ideas to Hitler and Eichmann. Whatever the link in factum esse, it is true that neither the evil and original Hitler or the evil and banal Eichmann would have been possible had German society held fast to a Natural Law jurisprudence. Ideas have consequences; and bad ideas have bad consequences.

We will close by quoting Kant. "Two things fill the mind with ever new and increasing admiration and awe, the more often and steadily we reflect upon them," said Kant, "the starry heavens above me and the moral law within me." Zwei Dinge erfüllen das Gemüt mit immer neuer und zunehmender Bewunderung und Ehrfurcht, je öfter und anhaltender sich das Nachdenken damit beschäftigt: der bestirnte Himmel über mir und das moralische Gesetz in mir.

Stars and duty, not God above or God within. John Paul II is supposed to have remarked about Kant in the context of his wrestling with Kant's thought: Kant! Mein Gott! Kant! Kant! My God! Kant! (Weigel, Witness to Hope (New York: Harper Collins, 1999), 128). It was as if John Paul II, in an unguarded moment, were challenging Kant from his very grave to turn his gaze from the lesser deities of stars and of duty to his God, the God of Abraham, Isaac, and Jacob. The God that became Man in Christ Jesus and taught us to pray . . . .

Note: These reflections rely heavily on Michael Waldstein's masterful summary of Kant's moral philosophy in John Paul II, Man and Woman He Created Them: A Theology of the Body (Boston: Pauline Books, 2006), 34-54.

"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.

Saturday, June 20, 2009

"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.