The Irish nation is rightly proud of its poetic inheritance. At first glance this sacred tradition has nothing to do with the law, but I argue that by engagement with our great poets we may arrive at a deeper understanding of the broader idea of justice.
The lawyers and politicians who hand down our laws have studied poetry in school of course, some perhaps in university. They may even have excelled in that study, but presumably their interest should cease when they become responsible adults.
The Romantic poet Percy Bysshe Shelley (1792-1822) makes the remarkable claim in his A Defence of Poetry (1812) that poets are the unacknowledged legislators of the world. He says that his kind engendered the social sympathies that are the inspiration for laws.
And poets actually seem to have literally sung some of the first laws into being. The legal scholar Edward J. Erbile writes: ‘Ancient law often took the form of poetry. Laws were expressed in incantatory rhythms. The oldest Greek and Latin words were also the eldest words for law. For example carmen or carminis in Latin means ‘song’ or ‘statute’.’
For the Ancients justice and poetry intermingled, the use of meter and rhyme helping people recall civic duties as a Catholic does his faith in reciting the Creed.
But apart from a mnemonic role is there a broader connection? Shelley contends that poetry is the highest form of imaginative expression which precedes philosophical enquiry. Nor does he restrict poetry to verse but points to the poetic imagination in other art forms. The great historians are poetic in their appreciation of human nature he says.
Shelley writes that for a man to be ‘greatly good’ he ‘must imagine intensely and comprehensively; he must put himself in the place of another and many others; the pains and pleasure of his species must be his own.’ Through his deep sensitivity the poet is therefore powerfully empathic; perhaps our lawmakers should also focus on these faculties.
As a true Romantic Shelley perhaps overstates the benign nature of poets. After all Hitler mesmerised audiences with mellifluous speeches and the Tory and Unionist politician Enoch Powell, a published poet, warned against multiculturalism using the colourful metaphor of ‘rivers of blood’.
Nonetheless poets are often visionaries. Shelley refers to a powerful intuition: ‘he not only beholds intensely the present as it is, and discovers those laws according to which present thing ought to be ordered, but he beholds the future in the present (not that they can foresee the future).’
That ability to “behold the future in the present” is apparent in Ireland’s greatest poet W.B. Yeats the winner of the Nobel Prize for literature in 1923. Writing in the aftermath of World War I he memorably predicted in The Second Coming how events would enfold in Europe culminating in the atrocities of World War II just twenty years later: ‘Things fall apart; the centre cannot hold.’ Here he’ll always be remembered for his immortal phrase: ‘A terrible beauty is born’.
Neither Shelley nor Yeats always embodied the lofty qualities that Shelley alludes to. Yeats’s fascist fellow-travelling and aristocratic hauteur is now rather embarrassing to his devotees, but interestingly as a Senator in the 1920s ‘that smiling public man’ was a trenchant critic of an increasingly Catholic State.
During a debate on the introduction of a law prohibiting divorce in the Seanad he presciently argued that: ‘If it ever comes that North and South unite, the North will not give up any liberty which she already possesses under her constitution. You will then have to grant to another people what you refuse to grant to those within your borders. If you show that this country, Southern Ireland, is going to be governed by Catholic ideas and by Catholic ideas alone, you will never get the North. You will create an impassable barrier between South and North … You will put a wedge into the midst of the nation.’
Yeats argued that the absence of divorce eroded the integrity of the institution of marriage itself: ‘This is a demand for happiness, which increases with education, and men and women who are held together against their will and reason soon cease to recognise any duty to one another.’
I suggest that perhaps the finest example of poetic imagination in Irish law was the discovery by Kenny J. of “Unenumerated Rights” under the Irish constitution in Ryan v Attorney General (1965).The right to bodily integrity was soon followed by the ‘discovery’ of other unexpressed rights by other judges. Kenny was, like the first poet-lawyers singing a new species of law into existence.
Unenumerated Rights have been vital to the development of Human Rights law in Ireland but unfortunately the idealism of the 1960s has given way to a more mechanistic and less imaginative approach to justice.
Poets may not live up to their own ideals but there seems no group better equipped at understanding the human condition and distilling moral principles from that essence.