Copyright © 1982, 2013, Victoria University
LECTURE TRANSCRIPT: Lecture 16
LAW: ORDERING A SOCIETY
I've been dealing with two phases of the Biblical revelation: first of all, with the Creation, and the conceptions of fall and deluge that are part of that complex; then with the revolutionary spirit that crystallizes around Israel in Egypt, and during the Exodus from Egypt. What follows, the third stage, is the stage of law, which for Judaism became the crucial one. The first five books of the Bible in Judaism are called the Torah, a word which is often translated 'law', although it means something much broader than that.
The shape of the New Testament turns on its conception of itself as a reformulation of the notion of law in the Old Testament. What one finds in Paul and the Epistle to the Hebrews particularly is a conception of the gospel as having set man free from the law. The legal material in the Old Testament is usually divided into three groups, the judicial, the ceremonial and the moral; and one of the first controversies in the Christian Church was over the question of whether the first generation of Christians, who were all Jews, would be subject to the ceremonial law or not. You can read about that in the Book of Acts, where Paul is the main spokesman for the view that the gospel breaks with all three aspects of the law. Of course, Christianity immediately set up a ceremonial law of its own; and although Paul says twice that circumcision is nothing, the Church in his day was saying something much more like, baptism is practically everything—and Paul himself supports that view. Similarly, the day of rest simply shifts from Saturday to Sunday. It isn't a question of getting rid of a ceremonial code, but of adopting a new one.
There was a good deal of controversy in Christian theology as to how much of this law one got set free from; and there were views that while the judicial part—the years of jubilee, that sort of thing—and the ceremonial code were not binding on Christianity, the moral law as set out in the Ten Commandments still was. Luther makes it a cardinal principle of his teaching that the Christian gospel makes a break with all three: but one has to understand what is meant by that. What he means by it is that the law becomes internalized, and consequently becomes something beyond the reach of a legal code. To say that the gospel set one free of the law doesn't mean breaking the law. It doesn't mean criminal action, because you don't get set free from the law by breaking the law: you get more fouled up with it than ever. You get free of the law by transforming it into an internal principle. As a result, the principles in the teaching of Jesus are concerned with the inner state of mind rather than with the social consequences of action. And so in his commentary on the Ten Commandments that forms a part of the Sermon on the Mount, the negative formulation 'don't kill' becomes a positive enthusiasm for human life; and 'don't commit adultery' becomes a habitual respect for the dignity of the woman; and 'don't steal' becomes an enthusiasm for sharing goods. In all this, of course, there was nothing that a legal code could be formulated to touch. If you think for example of the Seven Deadly Sins as they were set out in the Middle Ages—Pride, Wrath, Sloth, Envy, Avarice, Gluttony and Lechery—those were regarded as the mortal sins, the deadly sins that destroyed the soul; but not one of them necessarily ends in, or results in, criminal or anti-social acts.
That is, in the teaching of Jesus, the conception of sin is totally unintelligible except in a religious context. It is not antisocial behavior, nor is it anything that a law can regulate. So the transmutation of the law into an inner state of the soul leads to a much stricter and more intensive morality: if you tried to legalize the teachings of Jesus, for example, you would get the most frightful tyranny, because the things that offend your own self-respect are usually things that are of too fine a mesh for any kind of legal code to catch.
There are aspects of this question of law which are of some interest. For one thing, the conception of law is, in general, moral. The moral is the category which to some degree includes the judicial and ceremonial. It relates to the observances that God is represented as prescribing for Israel, laid down on top of a network of social obligations, customs and penalties, and so on. There is also the conception of natural law. Both principles are called 'law', but they really have nothing to do with each other. Yet the whole Biblical tradition, and western culture in general, has revolved around a strained and illegitimate pun on the word 'law' as meaning, first of all, the morality of human action, and secondly as meaning the observed phenomena of nature.
Now in the moral sphere you have a commanding personality—God—and you have those who have the choice of obeying or disobeying. If that is law, then what we call natural law has nothing to do with law, because laws of the phenomena of nature cannot be broken. You don't break a law of nature, you only manifest it. If you're standing on the edge of a precipice and jump over, you don't break the law of gravitation. You merely manifest the law of gravitation, and the law of gravitation breaks you. There could be no question whatever of feeling that you have a choice of obeying or disobeying a natural law; and in the course of time, we've come more and more to feel that nature is an impersonal order.
Now, we derived this illegitimate association of law both with human moral behavior and with the phenomena of nature through a kind of conspiracy between the Biblical and the Greek aspects of our cultural tradition. In Greek polytheistic religion, the gods had separate personalities, and consequently could fall out and disagree. The most obvious example is the Trojan War, where, to give them their Roman names, Juno, Minerva and Venus turned up in the altogether in front of Paris with a golden apple and said, 'We want you to give this to the most beautiful of the three of us'. So he had to choose one out of the three; and the other two said, 'Well, to hell with you', and went off and took the Greek side in the Trojan War whereas poor old Venus or Aphrodite, who, being what she was, had no talent for fighting at all, was the only one left on the Trojan side.
She did, according to the Iliad, try to get into the melee on one occasion, and one of the Greek warriors, Diomedes, gave her a whack over the wrist, which bruised it; and she went squalling back to Olympus and said to her father Zeus, 'Now look at what that awful man did to me: you've got to do something to him'. And Zeus said, 'Well you got just what you deserved: you have no business on a battlefield. You have to leave that to Athene, who knows how to wear armor'.
So in a polytheistic religion you obviously have to have something overruling these dashes of divine wills; and there are suggestions that the will of Zeus is being manifested no matter how the gods and goddesses disagree. But that's hardly consistent, because at one time, when it looks as though the Trojans are about to win over the Greeks, Hera, or Juno, who is on the Greek side, seduces Zeus by getting him into bed, and so put out of action. Zeus manages to scramble out of bed in time to help the Trojans, whom on the whole he prefers. But it is clear that while Homer does say from time to time that the will of Zeus is being accomplished, he is also saying that there is another force which has already determined what is going to happen, a force that is superior to the will of Zeus in power and that Zeus must obey. This force is the conception that we often translate very badly as 'fate'. It is really a conception derived from the sense of the regularity and invariability of natural law. Thus, we get most of our scientific tradition from the Greeks because they had a polytheistic religion. The power to overrule the clashes of divine wills in fact became the germ of the conception of natural law. And, as men are put there to serve the gods, and to behave more or less as the gods want them to, moral and natural law become associated even in the Greek tradition.
One place where they are so associated with particular eloquence and power is in the last of Aeschylus' three plays about the murder of Agamemnon, and about the revenge taken on his mother by Agamemnon's son, Orestes. In the third of those plays of Aeschylus, The Eumenides, there are two levels of balance or order. There is first the purely mechanical level, represented by the Furies, who are pursuing Orestes to avenge his murder of his mother. Actually, it was a good thing that Orestes did murder his mother: she had it coming to her. But that couldn't matter less to the Furies, who had been given orders that when this kind of thing happens, they automatically take vengeance.
The whole thing comes into a court of the gods; and eventually the goddess of wisdom, Athene, explains that one has to consider certain aspects of equity in the situation. That introduces a superior moral principle. But it is also part of a conception of an order in which men and the gods and nature are all involved. The gods ultimately have to ratify the order of nature: otherwise they'll lose their divinity and become something else. Therefore, in the Greek tradition, moral and natural law here become united.
In the Biblical tradition, the same thing happens, but for quite different reasons. There is also a contract involved: but in the Biblical version, nature is not a party to it. Therefore, there is no order of nature that is thought of as representing or manifesting an aspect of law. In the Biblical tradition, the same God controls both the moral and the natural orders. That means in effect that there is no natural law as we understand it, except as the functioning of nature under God's permission. The law of gravitation works because God wants it to, but strictly speaking, in the Biblical tradition there is no way of distinguishing a natural event from a miraculous one except by the rarity of the miracle.
If the same God controls both, and if his will is manifest in both moral and natural orders, then in both moral and natural orders you have a commanding personality and an agent who can either obey or disobey. In the nineteenth century, Nietzsche made his famous statement that God is dead. That statement, in spite of all the attention it has aroused even in theology, is still subordinate to Nietzsche's main purpose, which was to demonstrate that there is no personality in charge of nature, that nature consequently has no option of obeying or disobeying, and that all such notions are pure superstition.
The Eumenides ends almost as though it were a comedy. That is, the Furies acquire the name of Eumenides, which means 'the kindly spirits', because they are absorbed into a higher and more just conception of law that considers the factors of equity; Orestes is acquitted, and the whole play ends in an atmosphere of serenity. But in the whole context of Greek thought and of Aeschylus' dramatic form, I don't think that that calm and serene conclusion really turns the trilogy of Agamemnon into a comedy. What it does is to render a vision of an interlocking order in which man, the gods and nature are all involved; and it is that sense of interlocking order which lies behind Greek tragedy. It doesn't lie behind the Bible, and that is one reason Christian tragedy is a difficult form—something of a tour de force when it does appear—and often its success, in Shakespeare for example, is the result of such devices as making the setting pre-Christian in King Lear.
The conception of tragedy in Greek literature rests on the notion of hubris, or hybris. You usually see it spelled with a 'u', but that's just illiteracy. This act of hybris is an act of aggression that upsets the balance in the order of nature that the gods are there to ratify. Consequently, because it upsets the balance, a counterbalance must be set up, which is what is called nemesis. The action of aggression and counterbalance is symbolized by the scales, the emblem of justice, and is what makes the tragic conclusion not merely morally intelligible but almost physically intelligible. In fact, one of the earliest and profoundest of all Greek philosophers, Anaximander, said that getting born was an act of hybris, and death was its nemesis, the re-establishing of the balance in the scheme of things.
One of the words in Greek drama that we translate as 'fate' is moira. As I say, it's a very crude and approximate translation: it means more than that. At the opening of the Odyssey, Zeus is represented as saying, 'It's too bad that men are so ready to blame the gods for their own disasters, because for the most part they bring their disasters on themselves'. The example that he gives is that of the man who murdered Agamemnon, Aegisthus: he, Zeus says, went hyper moron, beyond fate. And because he went beyond fate, fate had to catch up: it had to make the counterbalancing movement that destroyed Aegisthus.
I think that tragedy arose in Greek literature at a certain period, largely in connection with the notion of justice or dike, as it's called, where the poets were concerned with this Greek interaction of gods and men and the order of nature. And so tragedy, which dramatized that interaction, really fitted the fifth-century period in Athenian culture. But as it manifests a very fundamental fact about the human situation, it is consequently a structure that can work in any culture, although it is more difficult if the assumptions are Christian ones. As I say, Shakespeare sometimes adopts special devices: because King Lear is pre-Christian, the characters keep swearing by Apollo and Jupiter and other gods that the audience knew didn't exist. Even as attentive a student of Shakespeare as Samuel Johnson says that Shakespeare's tragedies are almost miraculously clever stunts, almost a tour de force, and that his instinctive and temperamental bent was for comedy. Whether that is true or not, it is true that most religions tend towards some kind of goal for which the literary model is comedy. Greek religion was one of the very few exceptions that I know of.
There's another by-product of this that is perhaps worth looking at. If you look at the shape of the Biblical story, you can see what we have been pointing out all along, that man is thought of as living on two levels, as a man and as a creature of God. There is the level reached by Adam in the garden of Eden before the fall of man; and there is the lower level, represented by the Fall and by all human history since. The higher level manifests Itself in things like resurrection and apocalypse.
It follows then that in the Christian periods, there were two levels of the order of nature. The lower level was the level which man fell into, the level of physical nature, a level to which the animals and plants seem to be fairly well adjusted. But man before the Fall, in the garden of Eden, was in the state in which God intended him to live. That is an upper level of nature, the true level of human nature. In teaching Milton's Paradise Lost, I've often had occasion to notice how the description of the life of Adam and Eve in the garden of Eden makes them seem like a couple of suburbanites in the nude, preoccupied with their own sexual relations and with domestic details of housekeeping and gardening. Adam looks in the sky and says, 'There's an angel up in the sky'; and Eve says, 'How nice, maybe he'll stay to lunch', which he in fact does. He can't eat anything in Paradise except a fruit salad, but then he likes fruit salads. He explains how, being an angel, he can eat without the bother of excretion, which his skin pores take care of.
All of that has, naturally, aroused ridicule among some of Milton's readers. But the point is that Milton thought of Adam's life in the garden of Eden as the state in which God intended man to live; so that, therefore, man's original state was civilized. There are no noble savages for Milton until Adam has fallen. Adam turns into a noble savage after he's fallen; but before that, he was on the level of human nature.
Thus, there are two levels of nature, one appropriate to man, the other to beings without consciousness. It follows that many things are natural to man that are not natural to animals; and many things are natural to animals that are not natural to man. It is natural for man to wear clothes, to be in a state of social organization, to have degrees of rank, and so on. And so, as Edmund Burke was still insisting in the early nineteenth century, on the human level, nature and art are really the same thing. It is natural to man to be in a state of art.
In Milton's Comus, Comus is an evil spirit who captures a virtuous lady and holds her immobile in a chair, then tries to seduce her. His argument for seduction rests on the analogy with physical nature. The animals, he says, don't show the least self-consciousness or sense of sin about sexual intercourse: what's holding you up? And the lady tells him, in effect, that on her level of nature, chastity is what is natural to her.
On this basis, the question, what is natural to man? has a completely circular answer. What is natural to man is natural on the level of human nature, and the level of human nature is what custom and authority have decided to be the level of human nature. Homosexuality, for example, was often said to be condemned because it is unnatural: the animals don't do it. That is, it was asserted that the animals didn't do it, and they didn't examine animals very closely to see whether it was true or not. But the argument doesn't work on this upper level. There, what is unnatural is what the voice of custom and authority has decreed to be unnatural. There is nothing that you can define as inherently unnatural. In the Reformation, many Protestants took the position that nothing was wrong unless the Bible forbade it. And the Bible obligingly comes through with condemnations of most vices, but it forgets polygamy. It never once condemns polygamy, or suggests that there's anything wrong with that state of social organization. As the voice of custom and authority was determined to have a monogamous society to keep the sexual instinct properly regulated, it had to fall back on a conception of natural law for that one thing. But as I say, the argument is totally circular. We don't know what is natural to man as long as we are working on these two levels of nature. What we have inherited since the eighteenth century, coming very largely from issues raised by Rousseau, is the question: does this upper level of custom and authority represent the reality of human nature, or is it merely the facade which a structure of power has thrown up? We're still trying to figure out the answer to that one; but what I'm trying to get at is its origin: it is the shape of the Biblical myth that seems to imply that there are two levels of the natural.
Since the fall of Adam, man has been born into this middle world, the world of physical nature, the world to which animals and plants are adjusted but to which he is not. So he's confronted from birth with a moral dialectic. Either he moves up as close as he can to what was intended to be his state, or he goes down to the level of sin, which is a level that the animals cannot reach. Everything that is good for man—law and morality and education and virtue—all those things are agents that tend to raise man from the physical level he was born in to the human level he belongs in. Milton explicitly defines education as the attempt to repair the fall of our first parents; and he is referring to secular as well as to religious education.
Another inference from the Biblical story that western culture has adopted is the conception of what is called 'original sin'. Original sin arises from the fact that man is born into a world which is alien to him: it really arises out of the fact that man is going to die. His consciousness is, before it is anything else, a consciousness of death. And so, in man, as he is born in this alien world, there is a force of inertia pulling him down. It was out of that general view, not out of the specific doctrine, which came much later, that Jeremiah said that the heart is desperately wicked.