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.
