"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.