Saturday, April 29, 2017

"Nature Hath Framed Strange Fellows" William Shakespeare and Natural Law

A. Introduction
             Natural law theorists might turn to The History of Troilus and Cressida to start building their case.  They might begin with Ulysses’ lofty outline of the “natural” order:

The heavens themselves, the planets, and this center          
Observe degree, priority, and place,                            
Insisture, course, proportion, season, form,                    
Office, and custom, in all line of order,                       
And therefore is the glorious planet Sol                        
In noble eminence enthroned and sphered                         
Amidst the other; whose med'cinable eye                         
Corrects the influences of evil planets
And posts, like the commandment of a king . . . .[1]                      

Such theorists might then use Ulysses’ further stirring words to blend such “natural physical order” with a “natural order” in law and morality as well:

Take but degree away, untune that string,                      
And hark what discord follows. Each thing meets                
In mere oppugnancy.  The bounded waters                          
Should lift their bosoms higher than the shores              
And make a sop of all this solid globe;                         
Strength should be lord of imbecility,                          
And the rude son should strike his father dead;                 
Force should be right; or rather right and wrong,             
Between whose endless jar justice resides,                    
Should lose their names, and so should justice too.[2]                             

As far as it goes, it is hard to imagine a more eloquent case for natural law than this.

B. Polixenes, Prospero and the Essence of the Natural      
            That said, Shakespeare makes us question whether Ulysses’ lines do go far enough.  Shakespeare makes us question whether any rigid and objective natural order exists or is even possible.  For example, in The Merchant of Venice, Solanio correctly notes that “Nature hath framed strange fellows in her time...”[3]  We all know Solanio is right: we have seen natural difference in everything from strangely formed rocks to people born with odd dispositions or other traits.  Of course, since nature framed these “strange fellows” and other strange things, how can they not be natural?  Yet, if “strange fellows” and such other strange things are natural, isn’t “natural law” quite flexible to say the least?  How can we find enduring norms in the face of such flexibility?[4]   
            Nor do the difficulties end there.  Flexible nature itself grants of powers of change. For example, in The Winter’s Tale Perdita eschews some “unnatural” flowers that would beautify her then-barren garden:

. . . [T]he fairest flowers o' th’ season
Are our carnations and streaked gillyvors,
Which some call nature's bastards. Of that kind
Our rustic garden's barren, and I care not
To get slips of them.[5]

Polixenes pragmatically replies:

           . . . [S]weet maid, we marry
A gentler scion to the wildest stock,
And make conceive a bark of baser kind
By bud of nobler race.  This is an art
Which does mend nature--change it rather--but
The art itself is nature.[6]

In other words, the art of botanical engineering, the art of changing nature, is part of nature itself.

            Shakespeare pushes Polixenes’ point further in The Tempest.  In that play, Prospero’s art so thoroughly determines “nature” that one can rarely discern what is “real” and what is not.   Prospero summarizes the extent of his works when he renounces his art:

                                      . . . I have bedimmed
The noontide sun, called forth the mutinous winds,
And 'twixt the green sea and the azured vault
Set roaring war; to the dread rattling thunder
Have I given fire and rifted Jove's stout oak
With his own bolt; the strong-based promontory
Have I made shake and by the spurs plucked up
The pine and cedar; graves at my command
Have waked their sleepers, oped, and let 'em forth
By my so potent art . . . .[7]

            Of course, we should be grateful that nature embraces change.  If we truly believed nature outlawed change, we would live naked, raked with diseases (since it would be unnatural to cure them), and we would take our barren fields simply as we found them.   Worse, embracing such a purely “natural” life would be suicidal, homicidal, and thus evil since it would destroy us and those we love and have duties to protect.  It would destroy us because we must alter nature to survive.  We must breathe in nature’s air and thereby change it.  We must eat nature’s produce which we change to flesh and dung among other things.  We must rearrange nature’s stones and grass when we walk.  In short, we must alter nature to live.  Furthermore, as life itself and powers of change granted by nature are also “natural,” life and powers of change are no less naturally “precious” than grass or stones.  Inflexible “nature” or “natural law” therefore makes no sense for living creatures who must elevate themselves above wild nature—such “nature” or “natural law” would in fact be quite unnatural since, again, “art itself is nature.”[8]   To snatch further phrases from Shakespeare, it’s hard to see how unchanging natural law isn’t hoist with its own petard.

C. Among the Clouds

            The problems with any such natural law run deeper still.   Even if the objectively natural exists, we can find no fixed or objective measure of it. Hamlet and Antony both remind us how even mere clouds are subject to multiple interpretations.  Thus, Hamlet muses with Polonius:

Hamlet: Do you see yonder cloud that’s almost in shape of a camel?
Polonius: By th’ mass and ‘tis, like a camel indeed.
Hamlet: Methinks it is like a weasel.
Polonius: It is backed like a weasel.
Hamlet: Or like a whale.
Polonius: Very like a whale.[9]

Also interpreting clouds in various ways, Antony more darkly remarks to Eros:

Sometime we see a cloud that's dragonish,                           
A vapor sometime like a bear or lion,                          
A towered citadel, a pendent rock,                              
A forkèd mountain, or blue promontory                           
With trees upon't that nod unto the world
And mock our eyes with air.  Thou has seen these signs;
They are black vesper’s pageants.[10]                     

            Further, as Theseus notes in A Midummer Night’s Dream, diverse dispositions dictate different interpretations of nature.  Taking three types of persons, he remarks:

The lunatic, the lover, and the poet
Are of imagination all compact.
One sees more devils than vast hell can hold:
That is the madman.  The lover, all as frantic,
Sees Helen's beauty in a brow of Egypt.
The poet's eye, in fine frenzy rolling,
Doth glance from heaven to earth, from earth to heaven,
And as imagination bodies forth
The forms of things unknown, the poet's pen
Turns them to shapes, and gives to airy nothing
A local habitation and a name.[11]

Theseus also notes how easily persons of any disposition often confuse themselves:  “. . . [I]n the night, imagining some fear,/ How easy is a bush supposed a bear!”[12]   If nature is so elusive even with its mere vapors and bushes, a fortiori must not graver notions of “natural” morality elude our sight and expression.?  

In fact, what we can see of nature suggests no normative standards beyond those we would impose.  Shakespeare frames his great As You Like It upon this very point.  In that play, the characters may either live in court (where others’ rules are imposed upon them and upon “nature”) or in the wild (where each individual may attempt to impose his or her own rules including even gender rules).  

            When Duke Senior escapes to the woods of Arden, he is therefore free to say, “Here we feel not the penalty of Adam. . . .”[13]  Comparing the woods to court, he can also fancifully ask, “Hath not old custom made this life more sweet/ Than that of painted pomp?”[14]  He can therefore attempt to impose his more pleasing paradigm of “old custom” upon the wild where one may live free of any taint of original sin.[15]  Yet, Duke Senior recognizes and is “irked” by the butchery of nature required to live “naturally”:

Come, shall we go and kill us venison?
And yet it irks me the poor dappled fools,
Being native burghers of this desert city,
Should, in their own confines, with forkèd heads
Have their round haunches gored.[16]

            Jaques (a person the First Lord labels a “melancholy” man[17]) is also troubled by such killing.  With such a disposition, Jaques naturally has a much darker view of Arden.  The First Lord describes having seen him earlier in the day:

Today my Lord of Amiens and myself
Did steal behind him as he lay along
Under an oak, whose antique root peeps out
Upon the brook that brawls along this wood,
To the which place a poor sequestered stag
That from the hunter's aim had ta'en a hurt
Did come to languish; and indeed, my lord,
The wretched animal heaved forth such groans
That their discharge did stretch his leathern coat
Almost to bursting, and the big round tears
Coursed one another down his innocent nose
In piteous chase; and thus the hairy fool,
Much markèd of the melancholy Jaques,
Stood on th’ extremest verge of the swift brook,
Augmenting it with tears.[18]

From Jaques’ perspective, Arden is hardly paradise.  Instead, it is colored by his own unique melancholy free of others’ paradigms.  As he puts it himself:

I have neither the scholar's melancholy, which is emulation; nor the musician's, which is fantastical; nor the courtier's, which is proud; nor the soldier's, which is ambitious; nor the lawyer's, which is politic; nor the lady's, which is nice; nor the lover's, which is all these: but it is a melancholy of mine own, compounded of  many simples, extracted from many objects, and indeed the sundry contemplation of my travels, which, by often rumination, wraps me m a most humorous sadness.[19]

Though Jaques and the Senior Duke live in the same state of nature, they clearly live in different worlds.  

            These same “natural” worlds not only differ spatially but temporally as well.  As Rosalind observes in the play, “Time travels in divers paces with divers persons.”[20]  Time trots for  

. . . a young maid between the contract of her marriage and the day it is solemnized.  If the interim be but a sennight, Time's pace is so hard that it seems the length of
seven year.[21]

Yet, time “ambles” for those who sleep easily or have merry lives, “gallops” for the thief on the way to the gallows and stands still for lawyers sleeping between their terms.[22]  Nature thus allows for endless variation (conceptual, spatial and temporal) with no obvious normative guidance.  How could it possibly give us objective laws?

            This problem of course not only plagues natural law theory based upon “objective” nature as found in Arden or elsewhere.  It also plagues at least three other forms of “natural law” theory which purport to rest upon objective criteria beyond the flux of mutable human categories and perspectives.[23]  One such alternative theory of “natural law” rests upon the view of men and women as teleological creatures who should learn and seek their proper ends.  Under this view, true laws could be defined as those which advance such proper ends while “law” which runs counter to such proper ends would not be truly law.[24]  Although notions of ultimate ends and goods and of aspirations thereto may be useful instruments of ethical discourse, the claims that men and women truly have objectively-discernable “goods” or “ends” to which they should strive must of course suffer from the very same problems that plague such objective claims about nature itself.  Any “natural law” derived from such teleological notions must therefore prove as subjective and fallible as any “natural law” based upon or derived from nature itself.

            Another approach to “natural law” defines such law in terms of reason.  One formulation by Cicero provides a good example:

True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; it summons to duty by its commands, and averts from wrong-doing by its prohibitions.”[25]

Yet, to be comprehended, reason, too, must of course be framed and categorized no less than Hamlet’s and Antony’s clouds.   Reason therefore cannot be objectively “in agreement with” nature. 

            A third approach to “natural law” would invoke the law of God.[26]  However, this approach must also of course suffer from the same difficulties plaguing the two prior forms just discussed.  For man to understand and apply such law of God, such law must be communicated and must serve as the object of human thought.  But this of course again injects the same relativity we have just seen.  “God’s law” so interpreted will depend upon the categories and temperaments of the persons who study and expound it.  It cannot reveal itself or be revealed in any purely objective fashion that is not ultimately centered in the realm of variable human thought.  In fact, such natural law theorists find themselves vexed with the very problems that plague command-theory positivists who invoke the notion of the divine right of kings.  For, again, even if we accept some notion of the divine right of kings, we cannot as a practical matter determine who holds those rights.  The many bloody sovereignty disputes throughout history leave little doubt on this point.  And, again, anyone who would appeal to God to ground his office not only awkwardly contradicts Biblical provisions on the inscrutability of divine will (such as, again, the story of Job) but fails to learn from ancient wisdom on such folly.[27]  This is not to say, however, that a moral free for all follows or that anything goes from a moral perspective.  It only says that “natural law” theory in the forms discussed above provide us insufficient guidance. 

D.  Grand Inquisitors
            Unfortunately (and unsurprisingly in light of the problems we just saw with natural law), belief or pretense that laws are decreed by nature can create monsters at least as easily as command-theory positivism.  In a sense, these monsters can be even worse since they base their claims on “natural morality” instead of threats and commands not necessarily tethered to “morality.” 

            Shakespeare gives us a chilling example of such an inquisitor and tyrant: Angelo in Measure for Measure.  When reviving unenforced morality laws, the Duke leaves Angelo in charge of the revival.  By doing so, he hopes both to test the effect of revival and to reduce the potentially more severe impact that might occur if enforced directly in the Duke’s name.  Thus, the Duke tells the Friar:

We have strict statutes and most biting laws,                        
The needful bits and curbs to headstrong weeds,                
Which for this fourteen years we have let slip . . . .           
[So now] liberty plucks justice by the nose,                       
The baby beats the nurse, and quite athwart                     
Goes all decorum.[28]                                              

            Unfortunately for Claudio in the play, the strict language of the unenforced law provides the death penalty for him.  He has committed the capital crime of impregnating a woman out of wedlock, and Angelo sees no flexibility in enforcement.  Moral codes require strict enforcement to maintain justice and a commensurate high level of fear.  Thus, Angelo coldly opines:

We must not make a scarecrow of the law,                           
Setting it up to fear the birds of prey,                        
And let it keep one shape, till custom make it                   
Their perch and not their terror.[29]
            With respect to the particular long dormant law violated by Claudio, Angelo ruthlessly states:     

The law hath not been dead, though it hath slept.                 
Those many had not dared to do that evil                         
If the first that did th' edict infringe                        
Had answered for his deed. Now 'tis awake,                      
Takes note of what is done, and like a prophet,                
Looks in a glass that shows what future evils,                 
Either new, or by remissness new-conceived,                     
And so in progress to be hatched and born,                     
Are now to have no successive degrees,                          
But, ere they live, to end.[30]            
            When Angelo thus takes his charge, Shakespeare helps us to see how belief in fixed natural law breeds improper character traits in rulers.   Since impious leaders must also mold nature to survive, their “natural” law will of course fit their evil characters.  If left to their own devices, impious leaders can therefore “naturally” cultivate hubris, immorality, self-centeredness and a resulting lack of true compassion for others.   Lucio summarizes this well:

Upon [the Duke's] place,                       
And with full line of his authority,                            
Governs Lord Angelo, a man whose blood                          
Is very snow‑broth; one who never feels                         
The wanton stings and motions of the sense,                     
But doth rebate and blunt his natural edge                      
With profits of the mind, study and fast.                       
He--to give fear to use and liberty,                             
Which have for long run by the hideous law,                     
As mice by lions--hath picked out an act                        
Under whose heavy sense [Claudio's] life                             
Falls into forfeit.  He arrests him on it,                        
And follows close the rigor of the statute                     
To make him an example.[31]

            Shakespeare also shows us how natural law can breed hypocrisy.  As Angelo (like everyone else) must change nature to live, his “natural” law spares him from the hated law and even allows him to demand that Claudio's sister sleep with Angelo to spare her brother.[32]    Why not?   If left to his own devices, the nature he molds will center around him.  Fortunately, the Duke intervenes and stops Angelo.  Consistent with his more virtuous nature, the Duke imposes his own more heavenly mold on nature:

He who the sword of heaven will bear                            
Should be as holy as severe;                                    
Pattern in himself to know,                                      
Grace to stand, and virtue go;                                  
More nor less to others paying                                  
Than by self‑offences weighing.                                 
Shame to him whose cruel striking                               
Kills for faults of his own liking.                            
Twice treble shame on Angelo,                                   
To weed my vice and let his grow.                              
O, what may man within him hide,                                
Though angel on the outward side!                               
How may likeness made in crimes,                               
Making practice on the times,                                   
To draw with idle spider’s strings                              
Most ponderous and substantial things?[33]                   

Although the Duke’s words are impressive, they bring little comfort from a “natural” law perspective.  The next Duke might have the character of an Angelo.

E. Conclusion
            All this is not to say, however, that law cannot have essential (and in that sense perhaps “natural”) restraints upon it within cognitive or semiotic systems.  As I plan to show in a future blog on Shakespeare and the law, a number of such restraints exist where law is understood as a system of rules effectively governing social behavior.  This blog draws from my earlier longer piece Let's Skill All the Lawyers.

[1]Troilus and Cressida, act 1, sc. 3, lines 85-93.

[2] Id. at lines 109-118.

[3] Merchant of Venice, act 1, sc. 1, line 51.

[4] To compound the problem, philosophers have struggled since at least the time of Hume to understand how an “is” could beget an “ought.”  

[5] Winter’s Tale, act 4, sc. 4, lines 81-85.

[6] Id. at act 4, sc. 4, lines 92-97. (Winter’s Tale)

[7] The Tempest,  act 5, sc. 1, lines 41-50.

[8] Id. at act 4, sc. 4, line 97. (Winter’s Tale)

[9] Hamlet, act 3, sc. 2, lines 369-375.

[10] Antony and Cleopatra, act 4, sc. 14, lines 2-8.

[11] Midsummer Night’s Dream, act 5, sc. 1, lines 7-17.

[12] Id. at act 5, sc. 1, lines 21-22. (Midsummer Night’s Dream)

[13] As You Like It, act 2, sc. 1, line 5.

[14] Id. at act 2, sc. 1, lines 2-3. (As You Like It)

[15] Id. at act 2, sc. 1, lines 2-5. (As You Like It)

[16] Id. at act 2, sc. 1, lines 21-25. (As You Like It)

[17] Id. at act 2, sc. 1, line 26. (As You Like It)

[18] Id. at act 2, sc. 1, lines 29-43. (As You Like It)

[19] Id. at act 4, sc. 1, lines 10-19. (As You Like It)

[20] Id. at act 3, sc. 2, lines 301-302. (As You Like It)

[21] Id. at act 3, sc. 2, lines 306-309. (As You Like It)

[22] Id. at act 3, sc. 2, lines 310-324. (As You Like It)

[23] These three additional forms of natural law do not exhaust the number of additional possible “natural law” theories but I believe they are further exemplars of problems inherent in any theory of law based upon the objectively given or the objectively “natural.”  For a more exhaustive discussion of different forms of “natural law” theory see J.M. Kelly, A Short History of Western Legal Theory 19-21, 57-63,102-104, 141-146, 186-189, 222-229, 258-271, 333-334, 374-380, 418-430 (Clarendon Press 1994).

[24] For example, Aristotle states, “Every art and every inquiry, and similarly every action and choice, is thought to aim at some good; and for this reason the good has rightly been declared to be that at which all things aim.” Aristotle, Nicomachean Ethics in The Complete Works of Aristotle 1094a1-3 (W.D. Ross trans.1991).  A detailed examination of Aristotle’s legal and political theory is beyond the scope of this article.

[25] Edwin W. Patterson, Men and Ideas of the Law 342-343 (1953). Cicero’s meaning of “nature” is not always clear in his various passages.  See id.  However, this passage suggests law as reason in the sense I wish to note.

[26] Gratian for example related “natural law to the Decalogue and to Christ’s commandment of love of one’s neighbour. . . .” Kelly, supra n. 23, at 142.

[27] Again, they would make the mistake of Dido’s sister who overconfidently believes that Aeneas has come to stay and wed Dido when instead Dido and Carthage are but a stop on the way to Aeneas' fated founding of the Roman race. Virgil, The Aeneid 96-97 (Robert Ftizgerald trans., Everyman's Library 1992).  They would also make the mistake of Palladas’ thief who did not think he was spared merely to suffer a more painful death.  Palladas, The Complete Palladas 15 (Harold Anthony Lloyd, trans.).

[28] Measure for Measure, act 1, sc. 3, lines 19-31.  One can also read command theory positivism into the Duke’s views here: “So our decrees, /dead to infliction, to themselves are dead . . . . .” Id.  However, Angelo in lines I subsequently quote makes clear his natural law approach.

[29] Id. at act 2, sc. 1, lines 1-4. (Measure for Measure)

[30] Id. at act 2, sc. 2, lines 90-99. (Measure for Measure)

[31] Id. at act 1, sc. 4, lines 55-68. (Measure for Measure)

[32] Id. at act 2, sc. 4, lines 140-169. (Measure for Measure)

[33] Id. at act 3, sc. 2, lines 249-264. (Measure for Measure)

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