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.

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.

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