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, December 14, 2010

Natural Law in Cicero's De legibus, Part 4

POSITIVE LAW ALONE IS TOO SLIM A CHORD with which to discipline man. The positive law needs the moral law as much as the moral law needs the positive law. It is true, the natural moral law has its own form of discipline and sanction, its own punishments, and does not need the positive law in that sense. Typically, it is not in human courts that such penalty for violation of the natural law is paid, since such courts "used not to exist anywhere and now do not exist in many places, and where they do, they are often corrupt." (non tam iudiciis—quae quondam nusquam erant, hodie multifariam nulla sunt, ubi sunt tamen, persaepe falsa sunt). De leg., I.40. The judgment and the sanction is elsewhere: it is by being "chased and hounded" by the Furies, but not the Furies of legend; rather, these Furies are the "pains of conscience and the tortures of deceit," angore conscientiae fraudisque cruciatu. De leg., I.40.

The tradition of being chased or hounded by conscience is old, as old perhaps as man. It raises its head early in the Book of Genesis. It is a recurrent them of literature, both ancient and modern, and it is an experience most of us have felt at one time or another. Edgar Allen Poe's unnamed narrator in his short story "The Tell Tale Heart" or Dostoevsky's character Raskolnikov in Crime and Punishment are, of course, two classic applications of the principle in regard to the crime of murder in Western literature. It survives in Denis Diderot, who, in his "Entretien d'un pere avec ses enfants; ou, du danger de se mettre au-dessus des lois" ("Conversation of a Father with His Children; or, the Danger of Setting Oneself above the Law") relates this conversation between a hatter whose sick wife has died after he cared for her for eighteen years and is left penniless, and who, against the positive law, intends to keep his dead wife's dowry and run off to Geneva where the French writs don't run, instead of returning it to her relatives. Diderot suggests that the money ought to be returned in accordance to law:
The hatter replied brusquely:
"No, Monsieur, I shall go away, I shall go to Geneva."
"And you expect to leave your remorse behind?"
"I don't know; but I shall go to Geneva."
"Go wherever you choose, conscience will infallibly follow you."

Le chapelier répliqua brusquement:
“ Non, monsieur, je m'en irai à Genève.
“ - Et tu crois que tu laisseras le remords ici?
“ - Je ne sais, mais j'irai à Genève.
“ - Va où tu voudras, tu y trouveras ta conscience.”*
Did the hatter avoid his conscience? The main characters in Poe's "The Tell Tale Heart" and Dostoevsky's Crime and Punishment do not. If the hatter did, did he also lose his humanity?

The positive law alone cannot curb the wicked or even the wicked in the good: even the first-time criminal will deny the crime, invent an excuse, avoid being caught, evade its jurisdiction. The positive law is too superficial a method to excise or discipline and sanction the criminal heart from the wicked.

What will a person do in the dark if he is afraid only of witnesses and judges?
What will he do in some deserted place if he encounters someone from whom he can steal a lot of gold, someone weak and alone?

Nam quid faciet is homo in tenebris qui nihil timet nisi testem et iudicem?
Quid in deserto quo loco nactus, quem multo auro spoliare possit, imbecillum atque solum?

De leg.,I.41. The Ciceronian theme is classic, and it is put forward in myriad ways and settings: in Plato's ring of Gyges which made its wearer invisible at will (Republic, 2.359a–2.360d) in the murder of the Mandarin by will in Honoré de Balzac's Le Père Goriot, in H. G. Wells's Invisible Man, in J. R. R. Tolkien's Ring of Gollum. How many, without the buttress of moral education and habit, without the pressures of social mores, without the promptings of conscience have the fortitude to be moral if there were absolutely no sanction attached to being immoral?

Only the just man has any chance at all. The man who has not learned to be naturally just, but who seeks his own self-interest, and does not think of others' interests, and is disciplined only by the positive law law, will have no inner law to stop him if he thinks he can get away with it and others will not hear of it. He will use the Ring of Gyges to commit adultery with his neighbor's wife. He will kill the Mandarin to get his riches. He will use his invisibility to spread a Reign of Terror. He will use the golden ring to assume absolute power. Without the natural law, the conscience, and their outward bulwark, their city wall, as it were--virtue--there is no way to stop the three-fold libido: the libido sciendi, the libido sentiendi ,and the libido dominandi.

*Denis Diderot, "Entretien d'un pere avec ses enfants; ou, du danger de se mettre au-dessus des lois," translated by P N. Furbank, sub titulo "Conversation of a Father with His Children; or, the Danger of Setting Oneself above the Law," This Is Not a Story and Other Stories (Columbia: University of Missouri Press, 1991).

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