The action of The Rheingold is the reformation of a contract – that is, two parties to a contract agree to reform that contract to provide for terms different from those originally agreed upon, but nevertheless satisfactory to them both. This contract is reformed with the advice of counsel who, in trying circumstances, acts unethically. The resulting state of affairs is untenable, and creates the conflict that drives the rest of the Ring story.
The sources of law: written law and accepted conduct
Law comes to society in two ways – by members of the community agreeing on what the law ought to be and writing it down (statutory law), or by the incrustation of generations of conduct, tradition and custom (common law). Thus, one knows through statute that one must stop a car at a red light, or is forbidden to inhale marijuana; but one knows through accepted experience that one may not enter my neighbor’s property without permission, or that one must use reasonable care when inviting guests to one’s home, to make sure there are no hidden potholes or broken faucet handles that might injure them.
Wotan went the whole way for the law that is etched on the shaft of his spear. As we learn in the Prologue of Götterdämmerung, he visited the World Ash tree and, in consideration for plucking out his eye (see “consideration,” below) was given access to the world’s truth. These laws, or “runes,” were then etched onto his spear shaft, fashioned from a branch of that very tree which Wotan tore. It was law as Moses received it – straight from the source, pure, nonconsensual and nondeliberative. All creatures acknowledged the power of Wotan’s law, even if they had no voice in their fashioning. And ironically the law’s source – the World Ash – eventually died from the wound that Wotan inflicted on it by the act of memorializing its truths.
“Wotan made holy laws and treaties; then Wotan cut their words in the spear,” we are told. Some of these laws, or rules, are pronouncements. The Rhinemaidens’ “father,” for example, taught them that “[t]he world’s wealth can be won by a man who, seizing the Rheingold, fashions a ring.” Though such a ring would make the thief “lord of the world,” the thief must, to empower the totem, “pronounce a curse on love, he must renounce all joys of love, before he masters the magic…. And that’s a thing that will never be: all men who live must love; no one could ever renounce it.” This “rule” sets up a unilateral contract. If Alberich performs certain acts — that is, if he renounces love — then Alberich is entitled to enjoy the powers of the ring. In order to obtain that ring, of course, he must do an unlawful act, and steal it. He does both.
One of the (many) disappointments that a student encounters who approaches the law as a science is the definition of a contract: “A contract is a promise, for the breach of which the law provides a remedy.” This is, of course, uselessly circular. It is as much as to say, a contract is what a court says it is. And, indeed, this is so in real life. A contract – indeed, the law itself – is what a court says it is. Ask any unsuccessful litigant why she lost, and the answer will always be either “The Court got it wrong” or “My lawyer messed up.” The first excuse is what I’m addressing here; the second excuse will be addressed later.
But law is not whimsy. The social utility of commercial law is to give some guidance to our behavior, some predictability, so that we know that certain conduct can be relied upon to yield certain consequences. And over centuries of commercial conduct, some hallmarks have been recognized that assist people – including those who hire contractors to build a castle – in ordering their affairs.
Some promises the law will not enforce. Don Corleone’s promise to pay Big Pussy Castellano five thousand dollars to shoot Mugsy in the patella will not be enforced in court. If Big Pussy performs his end of the deal but isn’t paid, he will have to avail himself of compulsions other than the law to obtain a remedy. A donative promise – a promise to make a gift – will not be enforced on the principle that the law has other things to do than to ensure that someone gets something for nothing. The law requires certain characteristics to the promise in order for it to constitute an enforceable contract. Among these are a lawful objective, bargain, consideration, and willing consent (i.e., absence of duress). All of these elements are carefully set forth in the contract that Wotan enters into with the Giants to build the fortress Valhalla.
Writings, Social Mores and Specific Performance
Promises, behaviors and conduct subsequent to Wotan’s rape of the World Ash tree were also etched onto the spear. Thus, Wotan memorialized his deal with the Giants by etching the details on his spear shaft. So it is pursuant to the Statute of Frauds: certain categories of contracts, including those for the transfer of real estate and those requiring performance that cannot be completed in less than one year, must be committed to writing in order to be enforced. The utility of written promises is not merely ritualization — it also permits the parties to have a reference to the terms of the deal, in the event of a later dispute. Wotan himself refers to this function when he says: “I’ve not forgotten the bargain, the giants shall have their reward; for that proud race was subdued by my spear; graved on its shaft the terms for the castle.”
Fricka is offended by the terms of the contract, which require the giants to construct the building and for Wotan in exchange to give the giants a woman, specifically Wotan’s sister-in-law, Freia. Such a contract is nevertheless enforceable. The concept of using women as objects of barter may seem barbaric to us modern folks, but two points should be kept in mind. First, in the world of the Ring it is common. Freia is sold; Sieglinde is taken as chattel; the nameless woman whom Siegmund tries to rescue was forced into marriage by tribal consent; Brünnhilde is sentenced to rape in punishment for her disobedience and, later, is won (twice!) by conquest. Nor is this concept of ownership sex-specific – the Nibelungen are enslaved and no one speaks up about any injustice.
This raises the second point: at the time the poem of the Ring was written, women and men were the object of enforceable contracts and were bought and sold in a mature market, pursuant to enforceable contracts, in the United States. An identical contract would not be enforceable today.
The contract between Wotan and the giants is bilateral. The giants are promised something to Wotan’s detriment (his relative), in exchange for providing something to their detriment but Wotan’s benefit (their labor). Were the contract to be fully performed, each party would gain and lose something. Presumably, each party enters into the contract convinced that, in accordance with their current needs, the benefit exceeds the cost. Fasolt values expending his labor less than he values “woman’s beauty and grace. We dull ones toil away, sweat with our work-hardened hands; we longed for a woman, so charming and fair, to grace our poor dwelling.” Fafner is also willing to work for Freia, but is motivated less from romance than by real-politik:
“[T]he girl’s not what we want. Freia’s charms mean nothing, but we gain as soon as the gods have lost her. Golden apples ripen in her garden, she alone knows how they are tended; that golden fruit given to her kinsmen each day renews youth everlasting; pale and grey they’ll lose all their beauty, wan and weak they will grow old, when that fruit is denied them. And that’s why we’ll take her away!”
Late in Scene Two, Loge recognizes that this necessity of the gods’ access to youth-renewing apples was foreseen by the giants themselves, giving them a negotiating edge in bargaining for an eventual replacement value: “You staked your future on that youth-giving fruit; the giants knew that all too well….”
And Wotan’s motive? He wanted the castle built and was cunning enough to know what the giants would accept to build it. Though he promises them Freia, he admits to his wife that he never had any intention of actually performing the contract as agreed-upon: “Freia, the fair one, I shall not yield; such thoughts were far from my mind.”
This is not fraud, though it may appear to be. “Fraud in the inducement” speaks to conduct by one party to a contract that intentionally misleads the counterparty, on which the counterparty actually relies, to its detriment. Wotan does not intend to cheat the giants. Upon entering into the contract he sent his counselor, Loge, to search far and wide for consideration that would be equally valuable to the giants, replacing Freia with some other commodity that the giants would accept as having equal or greater value.
This would be perfectly lawful. Although the giants might be required to fulfill their side of the bargain exactly – that is, a court might require them to complete the construction of the house – Wotan would not be required to specifically perform his end of it. Land is unique, but money – and, presumably, women – are fungible. If Wotan had promised to pay the giants in one dollar bills, but then ultimately offered the same value in five dollar bills, there would be no actionable breach of the agreement.
Wotan’s conduct is not fraudulent. He fully intends to perform his end of the bargain: “This bond is engraved on my spear’s strong shaft,” he tells Donner, forbidding the impetuous god to renounce the obligation. All Wotan needs is to identify a form of payment that each of Fasolt and Fafner recognize to be of equal value to Freia. And for that, he relies upon his retained counsel, Loge.
The Law and the Practitioner — Loge the Lawyer
“Where simple truth serves, I need no one to help me,” says Wotan. “But to use the hate of foes to serve me – that needs guile and deceit; then Loge’s the one for the deed.”
The first indication that Loge serves as Wotan’s counsel is that he keeps his client waiting. Another is that few people have very much good to say about him. “Much harm he’s done to the gods, yet time and again you still use him,” complains Fricka. “Your name should be liar,” says Froh. Donner calls him “verfluchte,” which is something of a dirty word when used to describe a professional. Loge’s response is also archetypical of the lawyer: “To conceal his blunders, every fool blames me!”
Arriving late to the scene, Loge immediately distinguishes between the consequences of breach on Wotan and on Loge. Loge has acted as counsel – not a party. His client suggests that counsel “assured me that I’d escape from this contract. … When these giants made terms and asked Freia as payment, you know I only gave my consent because you promised you would find something else they would rather have.” Not so, says Loge. “How am I concerned in a contract? … I merely promised I’d consider how we might save her – that’s all I said.” Loge’s understanding of the terms of the agreement between him and his client is not contradicted. Although Loge would seek alternative payment, he did not indemnify Wotan’s obligations to the giants. The ultimate risk of nonperformance lay on Wotan, not on Wotan’s counsel.
In a spectacular and seemingly illogical gesture, Loge begins the negotiation by conceding, absolutely gratuitously, that the giants have performed adequately: “I inspected the place myself; it’s firmly made, safe and secure: Fasolt and Fafner, excellent work!” As the gods’ agent and representative, Loge’s words bind his clients. So much for a possible defense of nonperformance.
Loge nevertheless identifies a possible source of substitute consideration: The Rheingold, which Alberich has stolen from the Rheinmaidens, who in turn plead for satisfaction pursuant to Wotan’s law. The ring that controls the world is among the treasure, empowered by Alberich’s renunciation of love.
The result is remarkable. Fricka hears it as a way to keep her husband from roaming. Wotan is intrigued by the ring’s power. Donner is fearful of Alberich so long as he keeps the ring. Fafner, confiding to his brother that he values the gold more than Freia, publicly states that, though it is less valuable, they will nevertheless accept it.
Lawyers are only part-time advocates, arguing a client’s cause before a public court; they are also confidential counselors to their clients and private negotiators with their clients’ counterparties. Loge is gifted in this latter skill. His technique is attractive: rather than bullying or threatening a counbterparty in negotiation, Loge offers to help solve the problem. When the freshly-beaten Mime tells Loge to go away, Loge replies “That I’ll do gladly – not just that, but I’ll help you, Mime” and assists him to his feet. When Mime responds by complaining of his brother Alberich, Loge asks how Alberich became so powerful. He learns. Loge then asks two more questions and gets from the compliant Mime all the information he needs to negotiate with Alberich.
His dealings with Alberich are similarly non-confrontational, and a model of an essential (and rarely practiced) negotiation technique: how to get information from your counterparty without conveying any information of your own. Loge points out to Alberich that they have worked together before and, while adversaries in this matter, might work together again. Thus having identified points of commonality rather than conflict, Loge complements Alberich on his good fortune and power. Alberich responds by revealing the extent of it, and his plans for its use. Counseling hot-headed Wotan to “try to be patient,” Loge again complements Alberich on the good sense of his plan, offering the observation that Alberich should be careful to guard against a worker rebellion when he sleeps. This prompts Alberich to conclude that Loge is trying to insinuate himself, and Alberich proceeds to explain why he has no need for Loge’s advice – explaining how the Tarnhelm works and his plans for it, too. Loge’s purported amazement is again misinterpreted by Alberich as envy, and Alberich offers to demonstrate the Tarnhelm. It is during this demonstration that Loge and his client are able to close the trap on the unwitting Alberich and capture him and his gold.
This excellent example of negotiation skill reminds me of a remark made by an experienced and skilled attorney I once had the privilege to work with. We conducted a telephone negotiation with our adversary’s counsel, trying to agree on a schedule of briefing. Near the end, counsel started backing off the agreement, wary. “I think you might be trying to trick me,” he said. “You haven’t worked with me before,” said my colleague. “If I were trying to trick you, you wouldn’t know it.”
Lawyers and clients: Professional Ethics
While it is not entirely clear, Loge seems to present his client with the following proposition: Alberich’s possession of the Rheingold — including the ring — is unlawful. As enforcer of the law, Wotan is entitled – perhaps even bound – to take the Rheingold from Alberich. He further proposes that if the ring were returned to the Rhinemaidens, the rightful owners, then the bulk of the treasure can be converted by Wotan for his personal use to satisfy the giants.
But this proposal is not what Loge hears his client agree to. When he suggests that Wotan “please the Rhinemaidens, and then restore their gold, back to the waters,” his client responds “To please the Rhinemaidens? That’s not what I plan!” And the offer made publicly was surely unlawful: The giants offered to accept not simply the ring, but “Nibelheim’s shining gold… the Rheingold heaped on high.” And Wotan claims that he cannot produce “what is not mine, as your payment.” He then proceeds to do so, assisted by counsel.
Taking aside Wotan’s criminal intent – to convert stolen goods in order to satisfy a debt — Loge’s position in this matter is extremely awkward. He has not explicitly counseled criminal acts. He suggested that Alberich has no right to the gold, and that it should be taken from him in order to be returned to the Rhinemaidens. But he did so in the context of discussing alternative payment for the giants’ contract, and has actual knowledge that Wotan does not intend to return the gold to its rightful owner. Thus his words are on one side of the ethical divide, while his assistance of his client is on the other.
A lawyer may not assist his client to perform criminal acts. There is no doubt that Wotan obtains the gold by duress: he demands the gold as a condition of Alberich’s release from physical confinement, and actually wrenches that ring from Alberich’s unwilling hand. While Wotan is willing to call the Rhinemaidens as witnesses to Alberich’s lack of legal right to the gold (“will they declare that they gave you their gold as a present…?”) one can only imagine the cross-examination of those putative witnesses as to Wotan’s own claim to possession. Loge nevertheless asserts his client’s position: that the gold is Wotan’s to give and that it constitutes “Freia’s price.”
One last effort is made to stay ethically acceptable. Loge helps to pile the gold, assisting the criminal conversion. But when the giants demand the ring as well as the rest of the gold, Loge protests, “Just a moment! The Rhinemaidens must have that gold, and to them Wotan will give it.” Wotan however abjectly refuses to give it to the Rhinemaidens or anyone else. But what about my promise to them, says Loge, that the ring will be returned? “What you promised is nothing to me,” says Wotan; “I took the ring for myself.”
Wotan eventually releases the ring, but to the giants, not to the Rhinemaidens. And Loge entices one of the giants to demand sole possession of the ring from the other, culminating in a fratricide. But what is Loge’s ethical posture at the end of the play?
It is not uncommon for a lawyer to remind himself that the client’s problem is the client’s, and not the lawyer’s. But while the problem is the client’s, the client is the lawyer’s, and a lawyer without a client is like Heifitz without a violin. So lawyers try to serve their clients and, in so doing, run the risk of joining their clients in wrongdoing. Often it happens without a clear moment of decision – you look up and suddenly feel like you have to take a shower.
Such is Loge’s predicament, observing his clients enter their new home (accompanied by the most garish and tasteless music in the Ring). He confesses shame that he assisted them, and wonders if his own interests are best served by helping to destroy them, rather helping them prosper. In the midst of this indecision, though, his client gives him an instruction – get the Rhinemaidens to shut up. And immediately Loge does what he’s told, shouting to the victims of both Alberich’s and Wotan’s power, “Hear what Wotan decrees: Never more will you see your gold.”
What happens to Loge? He stays with his client for the short term, but eventually tries to extricate himself from the consequences of his ethical misjudgment. When his client begins abusing the law as a matter of course, Loge does the only thing that is left for a lawyer to do — he ends the representation. (The client, of course, recounts this event not as ethical assertion, but betrayal: Wotan eventually acknowledges that he “acted wrongly; trusting in treaties where evil lay, craftily counseled by Loge who lured me on — then left.”)
Yet Wotan has some sort of compulsion over Loge, which he exerts when needed. When Wotan commands that Brünnhilde be surrounded with flame, Loge immediately responds. When Wotan’s spear is broken and the essence of the law is sapped from it, “a flash of lightning darts from it towards the summit [where Loge is resident guarding Brünnhilde], where the flames, glowing dully before now break out more and more brightly.” Loge remains guarding Brünnhilde’s rock even after Siegfried has prevailed and conquered Loge’s fire. And – if the Norns are to be taken at their word – Loge receives his final payment from his client when, upon his return to Valhalla at the apocalyptic moment, Wotan instigates the immolation of the gods not by striking a match, but by impaling his lawyer with his splintered spear-shaft, letting loose the fire that consumes Valhalla and the world.
The law, moral authority and social expectations
“What you are,” Fasolt says to Wotan, “you became because of your bargains; you base your power on the bonds there defined. … I shall curse your wisdom; war, not peace, will reward you if you don’t fairly, frankly uphold the terms of the bargain you swore.”
The upholder of the law is defined by his function. Thus, as Joseph Lieberman sternly pointed out on the floor of the United States Senate in the course of the trial of President Bill Clinton, extramarital relations with a subordinate half one’s age has ramifications, not just on a marriage, but on all of society when engaged in by the ultimate executor of the law.
This expectation is grounded on the initial “social contract” to which Rousseau, Locke and Jefferson refer. Explicitly, in a document such as the Plymouth Contract and the United States Constitution, or more gradually over generations of tacit consent, a community agrees to abide by law in order to maintain peace. To continue its validity in the eyes of the community, however, that law must be seen to be equitable in its effect and application. The expectations of the governed cannot be lightly frustrated, and this principle is nowhere more evident than when the person charged with enforcement of the law is suspected of disregarding it to his own personal benefit. (E.g. Richard Nixon.)
The consequences of unlawful conduct increase as the nature of the law that is broken change. As discussed below, there is a distinction between laws designed to order the affairs of consenting individuals, such as contract, and those designed to protect the community at large, such as criminal law. Late in the action of Rheingold, Wotan – on counsel’s advice – steals the gold from Alberich, including the ring. When Alberich objects that he paid good consideration for the ring — namely, by renouncing love — Wotan dismisses his protestations on the ground that Alberich himself has no legal claim to it, having stolen it himself: “No chatter can prove your right to the ring”. But Alberich reasserts his indignation on moral – indeed, apocalyptic – terms: “Guard yourself, cruel god! If I have sinned, I sinned but against myself; but against all that was, is, and shall be, you are planning a crime by laying your hand on the ring!”
The legal event of the play is the intentional commission of two unlawful acts — one rapacious and the other criminal — by the enforcer of all law. This event so scars the moral universe that, incapable of healing through the law, it must be destroyed in anarchy and reborn within a different social structure, in order for moral stasis to return. As Wolfgang Wagner observed, “The fate of the gods is already sealed in Das Rheingold; all that remains to be determined is the timing and magnitude of the disaster to come. It is not Alberich’s theft of the gold that provokes it, but Wotan’s offense against Nature.” Wolfgang Wanger, Acts (1994), trans. John Brownjohn, at 140.
Wagner wrote: “lehrt nur Schlauheit und List.” Because there is such a gulf between cunning and dishonesty, I suggest that it is more useful to imagine that Wotan seeks a lawyer’s sophisticated counsel in parsing and resolving this problem, not in tricking people.
When I was a young lawyer I assisted the celebrated first amendment attorney Floyd Abrams in an unsuccessful attempt to persuade the United States Supreme Court to permit CNN to broadcast statements that Manuel Noriega had made to his attorney, and that had been intercepted by prison guards. A few days after the Court ruled against CNN, Abrams appeared at a press luncheon and was asked what would happen if a news organization defied a lower court order and broadcast anyway. “To me?” said Abrams. “Nothing.”
This process is an example of the need to define terms with precision. Wotan, a non-lawyer, says that Alberich’s ransom is “the gold.” Alberich delivers “the gold” in the form of the bullion, but not the fineries derived from “the gold.” Wotan is required, one by one, to insist that “[t]he Tarnhelm is part of the ransom” and the ring “is also part of the price.”