SOURCE: "The Felicity and Infelicity of Marriage in Jude the Obscure," in Nineteenth-Century Fiction, Vol. 38, No. 2, 1983, pp. 189-213.

[In the following essay, Goetz explores elements of Jude the Obscure that form a critique of marriage.]

Matrimony have growed to be that serious in these days that one really do feel afeard to move in it at all. In my time we took it more careless; and I don't know that we was any the worse for it!

—the Widow Edlin in Jude the Obscure

When Jude the Obscure was published in 1895, it was interpreted in many quarters as Hardy's contribution to the growing contemporary debate on the "marriage question." The prominence of the public debate, as well as Hardy's candid and even sensational treatment of marriage and sex in his novel, tended to draw attention to this aspect of the work rather than to the other theme that Hardy apparently had in mind when he first conceived Jude, the educational one. In a letter of 10 November 1895 to his friend Edmund Gosse, Hardy expressed surprise at the way the novel was being received: "It is curious that some of the papers should look upon the novel as a manifesto on 'the marriage question' (although of course, it involves it)." Hardy's suggestion here that Jude is not about marriage as a social theme in the way the reviewers understood, yet does "involve" marriage, is amplified in his 1912 "Postscript" to the novel, which requires lengthier quotation:

The marriage laws being used in great part as the tragic machinery of the tale, and its general drift on the domestic side tending to show that, in Diderot's words, the civil law should be only the enunciation of the law of nature (a statement that requires some qualification, by the way), I have been charged since 1895 with a large responsibility in this country for the present "shop-soiled" condition of the marriage theme (as a learned writer characterized it the other day). I do not know. My opinion at that time, if I remember rightly, was what it is now, that a marriage should be dissolvable as soon as it becomes a cruelty to either of the parties—being then essentially and morally no marriage—and it seemed a good foundation for the fable of a tragedy. (Norton Jude, pp. 6-7)

By calling the marriage laws his "machinery," Hardy suggests, as he did in the letter to Gosse, that the institution of marriage is important to the novel but only as a means, not as an end; the end is "tragedy" itself. The statement does admit, though, that the novel's theme has to do with marriage laws, and specifically that the novel seeks to call into question the institution of marriage on the grounds of natural morality. Hardy's opinion that a marriage based on "cruelty" is "essentially and morally no marriage" implies that the novel refers to two different notions of marriage. Civil marriage sanctioned by society may find itself at variance with a more natural form of marriage, one that does not depend on social conventions to validate it. This implicit distinction between two conceptions of marriage is based on the explicit distinction between "civil law" and the "law of nature." Ideally, the relation between these two laws is not so much one of opposition as of "enunciation," wherein the human code of law articulates or speaks the law of nature, which remains dumb. We must not, however, overlook Hardy's parenthetical comment that this model of enunciation, attributed here to Diderot, is in need of "some qualification"—a qualification that Hardy does not supply but which the novel itself, as I shall argue, will supply for him. The Postscript, in any case, promptly forgets the need for "qualification" and proceeds to an attractively straightforward conclusion concerning the novel's theme. If civil marriage deviates from the law of nature by becoming cruel, it "should be dissolvable," presumably through divorce or annulment. The novel would demonstrate the perversion of a marriage that strays from the laws of nature into cruelty and yet cannot be corrected through divorce. Paradoxically, it would be the very lack of authority, or the groundlessness, of such a marriage that would provide the "foundation" for Hardy's own tragic work.

But this is, of course, far from an accurate description of what happens in Jude, and Hardy is certainly justified in arguing that his novel is no manifesto of this kind. What is striking in the novel is precisely the rapidity with which both Jude's and Sue's marriages are terminated at the beginning of Part v (though, as we shall see, one of these divorces is based on a mistake). This availability of divorce sets Jude off from Hardy's earlier treatment of the same problem in The Woodlanders (1887), where Grace's inability to obtain a divorce from Fitzpiers turns a potentially comic ending into a much more somber one. In Jude, Hardy goes one step farther by allowing divorce to occur, but then shows that it offers no lasting solution, so that the novel can conclude only after both protagonists have reentered marriages with their original partners in a sort of grotesque parody of the conventionally happy ending of the earlier English novel. Instead of chronicling a reassuring move from a corrupt civil state back to a natural one, then, the novel insists on the instability of both these states, and on the seemingly necessary return to a condition of marriage whose spiritual bankruptcy and cruelty have already been conclusively exposed.

Thus the opposition between marriage and divorce, in which divorce is seen as the antidote to a cruel marriage, already breaks down, and the relation between the two states becomes much more problematic. The whole novel, Hardy wrote to Gosse, was to be constructed on "contrasts," the foremost of which the author defined in his original preface as "a deadly war waged between flesh and spirit" (Norton Jude, p. 5). These contrasts, though, as we shall see, are not so much relations of mutual exclusion, when one term is to be preferred to the other, as they are double binds, when the inadequacy of one term gives way only to the inadequacy of the other. Such will be the structure of Hardy's "tragedy." Marriage finds its place in this tragedy not only as a social theme but as an institution whose form lends itself to the shape of the novel Hardy is trying to write.

To see how the structure works, and specifically to see how marriage functions, let us return to the basic opposition between "civil law" and "law of nature." Throughout the novel Jude and Sue will dwell in a constant state of tension between these two terms, debating the significance and the viability of both from the standpoint they occupy at the moment. Their continual dialogue on these questions is itself a reflection of the fact that the civil law may be nothing but an "enunciation" of the law of nature. The civil law is represented primarily in the form of a language, and as such it both sets itself off from but also (ideally) connects itself to the law of nature, which it articulates. What does it mean for human law, and especially the marriage laws, to be conceived as a language? In this novel it means at least two distinct things.

First, it means that the law is literally a kind of language that names its objects—"literally," as when we speak of "the letter of the law." The law here is associated with denomination and literalism. Most importantly, it becomes the "letter [that] killeth," the letter from II Corinthians 3:6 that Hardy chose as epigraph for his novel. Interestingly, the second half of this quotation—"the spirit [that] giveth life"—is omitted by Hardy both when it appears as epigraph and when Jude quotes it again toward the close of the novel (VI , 8). Hardy's refusal to quote the redemptive half of Paul's formula may well prove significant, but if for the moment we take the epigraph to be pointing to the familiar opposition between letter and spirit, then we have a new version of an opposition which is almost identical to that between "flesh" and "spirit" and which also seems to link up to that between the state of civil society and the state of nature. In this scheme the positive value is ascribed to the spirit and to the state of nature, while the letter of the law becomes the emblem of what is wrong with institutionalized society.

Acting as a letter, the law names its objects: persons and forms of behavior. But the law also functions linguistically in a second way: it not only names but dictates, prescribes, or constitutes its objects. As is well known, legal language lends itself readily to a speech act theory of language, because it is so frequently performative, rather than constative, in its function. Legal language—or again, for our purposes, the language of the marriage contract in particular—is so clearly performative that it furnishes the very first example of a speech act in J. L. Austin's How To Do Things With Words, the work that founded speech act theory:

Examples:

(E. a) "I do (sc. take this woman to be my lawful wedded wife)"—as uttered in the course of the marriage ceremony.

According to Austin's initial definitions, a performative utterance, for which the marriage oath furnishes the paradigm, is a kind of language that does not point to a state of affairs (as a "constative" utterance does) but creates or constitutes the state of affairs through the act of the utterance itself. Consequently, performatives cannot be judged to be true or false (since they do not correspond to any reality outside of themselves) but can only be judged "felicitous" or "infelicitous," depending upon whether they are appropriate or not to bring about the event they claim to perform. Their success or "felicity" will depend upon their fulfillment of a certain set of conventions that are both necessary and sufficient for the performance of the speech act in question.

Insofar as marriage furnishes the "machinery" for Jude the Obscure, the novel becomes an exploration of the marriage contract considered both as "letter" and as speech act. These two aspects of marriage, and especially the latter one, constitute the basis for Hardy's critique of marriage as an institution. Indeed, the unhappiness that all the main characters encounter in their marriages is to some extent analyzed as a consequence of the various "infelicities," in Austin's special sense, to which die act of marriage can succumb. Certain episodes in the novel can practically be read as textbook examples of "infelicity" in performative acts. Such is the mock marriage that Sue and Jude perform just hours before her real wedding to Phillotson (III, 7). Placing her arm in his for the first time, "almost as if she loved him," Sue insists on walking up the church nave to the altar railing and back down, "precisely like a couple just married." The act is infelicitous, of course, because of the absence of both an officiating minister and a marriage oath spoken by the two parties. Jude finds Sue's rash mimicking of the marriage act irresponsible, and says to himself, "She does not realize what marriage means!" Sue's toying with the wedding ceremony is, among other things, an instance of her ability to hurt the feelings of Jude, who finds her behavior here "merciless." Another example of an irresponsible tampering with the convention of marriage is given by Arabella when she consents to marriage with the man in Australia even though she is already married to Jude. This entire subplot, which includes Arabella's divorce from Jude and her remarriage, now within the proper forms, to the man she met in Australia, exemplifies a speech act that "misfires" (a subcategory of "infelicity" for Austin) and is then rectified by a return to the required conventions.

But Hardy is interested not only in showing such casual floutings of the marriage laws, which in themselves may seem isolated and accidental occurrences dependent upon individual willful acts. Instead of simply showing how the act of marriage can be infelicious, his real goal is to show that even when it is apparently felicitous—that is, when the recognized conventions governing the act of marriage have been properly invoked and performed—marriage is doomed to failure, because it promises to deliver something it cannot. This he demonstrates through the two main marriages in the novel. Although it is in Parts II I and IV , with Sue's marriage to Phillotson, that the marriage question is brought to a head, the case against marriage as a misguided convention is already fully articulated in Part I, apropos of Jude's particularly infelicitous (in the common sense) marriage with Arabella. What is noteworthy about their wedding is the way in which Hardy's narrator undercuts the meaning of the act at the very moment it is being solemnized:

And so, standing before the aforesaid officiator, the two swore that at every other time of their lives till death took them, they would assuredly believe, feel, and desire precisely as they had believed, felt, and desired during the few preceding weeks. What was as remarkable as the undertaking itself was the fact that nobody seemed at all surprised at what they swore. (1, 9)

The narrator treats the act of marriage essentially as the exchange of an oath or a promise (an important category of performatives in speech act theory). The most obvious kind of infelicity to which a promise can fall victim is of course insincerity, something J. L. Austin identifies as one of the possible "abuses" of a performative.

The narrator of Jude the Obscure does not, however, accuse either Jude or Arabella of insincerity or bad faith (even though bad faith has been involved in Arabella's entrapment of Jude in marriage on the false grounds of her alleged pregnancy), because this would again point only to an intentional, personal abuse of the convention. Rather, the narrator's comment strongly implies that the convention of the marriage oath is intrinsically infelicitous because of the nature of promises and the nature of human emotions. As one critic has written, the novel is here illustrating "the inappropriateness and the superficiality of conventional language." A few chapters later, a reflection attributed to Jude confirms the earlier narrative comment: "Their lives were ruined, he thought; ruined by the fundamental error of their matrimonial union: that of having based a permanent contract on a temporary feeling which had no necessary connection with affinities that alone render a lifelong comradeship tolerable" (I, II). Marriage fails not because of suspect intentions in the participants but because of an "error" contained in the convention itself. The convention suffers, in fact, from two distinct confusions: the confusion of the temporary with the "life-long" (a momentary oath supposedly binding one for life), and that of a "feeling" with an "affinity"; that is, a purely physical or sexual attraction is confused with the "spiritual" union that marriage should ideally represent. The two confusions are of course aligned in that sex is implicitly said to be a necessarily temporary feeling while spiritual "affinities" are lasting. There are problems here, not the least of which is that sex, which is here criticized as offering an inadequate basis for marriage, forms (as we shall see) an integral part of the definition or "letter" of marriage. But this particular problem will prove more of a difficulty for Sut than for Jude and Arabella. We have just seen that the latter's marriage is doomed to failure even as it begins, a failure not primarily attributable to the personal characters of the partners involved (though Arabella's duplicity undoubtedly adds to the sense of the inevitable wreck) but to a defect inherent in the convention of the marriage oath.

Sue's response to her marriage will both confirm and amplify the critique already made of Jude's marriage. In her fiercely unconventional, even antinomian, spirit, Sue attacks marriage as an institution and as a "letter," a dead letter to her, but one which nonetheless has the power to impose a new name on her:

"the social moulds civilization fits us into have no more relation to our actual shapes than the conventional shapes of the constellations have to the real star-patterns. I am called Mrs. Richard Phillotson, living a calm wedded life with my counterpart of that name. But I am not really Mrs. Richard Phillotson, but a woman tossed about, all alone, with aberrant passions, and unaccountable antipathies.… (IV, I)

Sue's thinking is based on a radical opposition between social forms and a private self whose ineffable, unique quality must forever remain "unaccountable" in the terms of those social conventions (an opposition more drastic than Hardy's distinction between the "laws of nature" and "civil law"). The marriage law necessarily generalizes something that is in essence particular, and makes contractual a feeling that should be voluntary. Later, when Sue is arguing against the idea of a marriage between herself and Jude, she hints that her lack of feeling for Phillotson was actually the result of her contractual bond with him: "Don't you dread the attitude that insensibly arises out of legal obligation? Don't you think it is destructive to a passion whose essence is its gratuitousness?" (V, 3). Sue's critique of marriage is an even stronger one, then, than that made by the narrator on the occasion of Jude's marriage to Arabella. The narrator had argued only that the marriage oath is inconsistent with the ephemeral nature of human desires, while Sue claims that the oath, or the contract it establishes, actually destroys those desires. This would be the ultimate degree of infelicity for any performative, that through its very commission it should perform the exact opposite of what its "letter," or literal formula, claims to achieve.

Of course, as many critics of the novel have judged, Sue's theoretical arguments against marriage can be read in large part as rationalizations for what she finds to be the truly objectionable aspect of marriage, the sexual one. This does not mean that those arguments, in the context of the novel, are invalid, but it does mean that for Sue marriage is not only a verbal convention but is above all the occasion for the sexual act. It is Sue's ignorance of sex before her marriage to which Jude may be referring when he thinks to himself, "She does not realize what marriage means!" (Ill, 7). Later, after Sue's marriage to Phillotson has taken place, and has presumably been consummated, she admits to Jude: "Jude, before I married him I had never thought out fully what marriage meant, even though I knew" (IV, 2). The full "meaning" of marriage, then, is still more complicated than its status as a verbal act has indicated. Beyond constituting a legal state, marriage refers to an act of physical union, without which, as its "consummation," it is null and void. If the "spirit" of marriage seems to be contained in its verbal contract, its "letter," and arguably its true referent, is found in the sexual act. This is the letter that almost "killeth" Sue.

What Sue, with her sharp eye for conventions and their absurdity, had failed to see was the paradox that the conventionally defined act of marriage can be validated only through the physical, "raw" or noninstitutional act of sex. In Part VI , when little Jude asks her why babies come into the world, she will reply that it is "a law of nature" (VI , 2). The paradox is that the most natural of all acts should be inscribed within a verbal contract, made to subserve this contract and given a new meaning in reference to it. In other words, there is here a crossing of concepts that had previously seemed to belong to the distinct categories of the civil and the natural. Sue's disgust at this crossing is reflected in her language when she contemplates a new marriage to Jude: "I think I should begin to be afraid of you, Jude, the moment you had contracted to cherish me under a Government stamp, and I was licensed to be loved on the premises by you—Ugh, how horrible and sordid!" (V, I).

Sue may be offended by the logic of the marriage contract, but she is also capable of using the logic of conventions to her own ends, exploiting and undermining its terminology through an appeal to a more "natural" law. This is the way she frames her argument when she is trying to persuade Phillotson to allow her to live apart from him: "For a man and woman to live on intimate terms when one feels as I do is adultery, in any circumstances, however legal" (IV, 3). Sue's own crossing of categories here, in the oxymoronic notion of a "legal adultery," rests upon her interjection of a natural morality into the discussion of a contractual relation. Seen through the eyes of nature, Sue and Phillotson's marriage is adulterous—as if nature recognized marriage, and therefore adultery, at all. For Sue to call her own marriage adulterous represents a more radical attack on the institution of marriage than her engaging in an act of adultery could ever represent because it implies that adultery can happen not just outside of marriage but inside it as well.

Similarly, the solution Sue offers to Phillotson would, arguably, undermine marriage even more than a formal divorce. By proposing to live apart from him while remaining nominally his wife, Sue is proposing to preserve the appearance of their legal, contractual relationship while ceasing to fulfill its letter. Far from being dictated by a concern for appearances, though, Sue's suggestion is actually prompted by her total indifference to convention: the continued legal relationship with her husband would mean nothing to her as long as she were rid of the torment of physical intimacy. Her lack of respect for the marriage contract becomes even more apparent when she suggests that they terminate their marriage through a new verbal contract, this one sanctioned not by positive law but by natural morality: "Why can't we agree to free each other? We made the compact, and surely we can cancel it—not legally, of course; but we can morally, especially as no new interests, in the shape of children, have arisen to be looked after" (IV, 3). Sue is willing, as usual, to resort to conventional behavior when it suits her purposes, but what she appeals to now is a merely personal promise that cannot have the force of a legally recognized divorce. What she is proposing, then, is to undermine her marriage by a new speech act which is, however, not strictly symmetrical with the oath that created the marriage in the first place.

Of course, Sue's plan for this particular kind of separation from her husband—a separation that would leave her marriage intact as a legal contract and yet strangely void for lack of consummation—will work only temporarily, and soon we shall have to consider how the divorce Phillotson obtains from her alters her situation. But the arguments of Sue I have just cited, with their subtle undermining of the institution of marriage through a strange, mixed recourse to both natural and conventional forms of behavior, represent a distinct climax in the plot of the novel. The climactic sense comes in part from the way that Sue's reasoning so closely echoes Hardy's reasoning in his Postscript of 1912, namely "that a marriage should be dissolvable as soon as it becomes a cruelty to either of the parties—being then essentially and morally no marriage." Hardy's statement seems to support the action of his heroine at this critical juncture of the novel, and when Phillotson too, rather less expectedly, gives consent to it, the novel enters into a new phase.

This new phase would seem to be grounded in the principle that has permitted the judgment that a cruel marriage is "morally no marriage." It seems to presuppose the ideal of a relationship which is not sanctioned by the law and which can be sustained without cruelty to either partner. Such a relationship would be based on a natural affinity between two people who have no need even to "enunciate" their natural desire for each other through the language of the civil law. The relationship that this novel suggests might fulfill such an ideal is, of course, that between Jude and Sue. It is largely (though not exclusively) in reference to their relationship that the novel invokes a Romantic vocabulary of natural correspondences, elective affinities, and "magnetism" (II, 3). The narrative is establishing these links between Jude and Sue even while Sue's acquaintance and later marriage with Phillotson are driving her inexorably away from a union with Jude; it is in part Sue's already established attraction to Jude (along with her revulsion from her husband) that will rapidly make her marriage unviable. Al l of this would make it seem that Sue's marriage need only "dissolve" to enable her to rush into Jude's arms and find happiness. But this kind of clear-cut alternative is precisely what this novel is working against. Instead, even while the narrative has been instilling the idea that Sue and Jude are meant for each other, it has been complicating that idea by putting into question the notion of natural affinities altogether.

By one of those touches, ironic and fitting at the same time, of which the novel is full, it is Phillotson who supplies some of the strongest statements of the natural bond that exists between Sue and Jude. To his friend Gillingham he says: "I have been struck with these two facts; the extraordinary sympathy, or similarity, between the pair. He is her cousin, which perhaps accounts for some of it. They seem to be one person split in two!" (IV, 4). As he goes on to describe their extraordinary affinity, or sympathy, Phillotson adds to this Platonic myth the Shelleyan one of Laon and Cythna, the lovers from The Revolt of Islam—an allusion that links this passage to Hardy's Well-Beloved, which borrows its epigraph from the same poem. In both novels Plato's mythic explanation for the attraction between two people is supplemented by a characteristically Romantic hint of incest in the relations between two cousins. The otherwise prosaic Phillotson turns out to be a surprisingly Romantic reader of human relations.

But this Romantic interpretation has already been put into question before the disappointed husband enunciates it. It already informs the language the narrator uses to describe the first glimpses that Jude catches of Sue after his arrival at Christminster. On the first of these occasions Jude enters the shop where she is working and watches her silently until he hears her speak, whereupon "he recognized in the accents certain qualities of his own voice; softened and sweetened, but his own." This faintly incestuous affinity is based on the most spiritual and interior of all qualities, the living voice. But, as the text immediately asks, "What was she doing?" Working with a zinc scroll, Sue "was designing or illuminating, in characters of Church text, the single word ALLELUIA " (II, 2). Sue's work involves the letter, the written text, in its most material quality—its materiality underscored in Hardy's text by the word's being spelled out in Gothic lettering. The soft tones of Sue's voice are already opposed by the resistant physicality of the religious "letter," an emblem of the letter which, in the form of the religiously sanctioned marriage law, will later be Sue's enemy.

What remains as implicit commentary in this first scene, inscribed tacitly in the environment in which Sue is found, becomes explicit during Jude's next encounter with her. This meeting takes place in church, and this time the spiritual vehicle supposedly expressing the affinity between the two is again the voice, now supported by music. The chanting of a psalm for organ and choir, heard by the two cousins in the audience, is interpreted as the expression of a harmonic link between them. Al though they are not seated together and Sue is not even aware of Jude's presence, he imagines her "ensphered by the same harmonies as those which floated into his ears; and the thought was a delight to him." The shared music encourages Jude to think that Sue "had, no doubt, much in common with him," and his fantasy culminates in a state of "ecstasy." Cutting this ecstasy short, however, the narrator immediately remarks: "Though he was loth to suspect it, some people might have said to him that the atmosphere blew as distinctly from Cyprus as from Galilee" (II, 3). "Some people," of course, might be wrong; yet the effect of this remark is to undercut Jude's own belief in the idealism (and religious purity) of his attraction to Sue and to replace it by a more carnal desire. This opposition between a genuine, ideal affinity and a merely sexual one is the same opposition the narrator had already used for his critique of Jude's marriage with Arabella, and it is therefore a particularly ominous presage of the future relations between Jude and Sue.

This erroneous grounding of a natural affinity between persons in a shared experience of church music has a curious parallel later in the novel. Shortly after Sue's marriage to Phillotson in Part II I ("At Melchester"), Jude hears a newly composed hymn by a Wessex musician and is greatly impressed by its beauty. Jude promptly attributes the qualities of the music to its composer: "What a man of sympathies he must be!… 'He of all men would understand my difficulties,' said the impulsive Jude. If there were any person in the world to choose as a confidant, this composer would be the one, for he must have suffered, and throbbed, and yearned" (III , 10). Like Proust's Swann after hearing for the first time the sonata of Vinteuil, Jude resolves to meet the composer. But when he does—spending an entire Sunday journeying by rail to a small village and back—he is greatly disappointed. Far from exhibiting the same spiritual qualities as his music, the composer turns out to be petty and materialistic, interested only in the financial returns of his art, and thinking of changing from composing into the wine business. This disillusioning encounter, which Jude narrates to Sue when they meet again at the start of Part IV , has no further consequences for the main plot of the novel; it is a completely extrinsic episode. Its inclusion in the novel can be explained only by its reinforcement of the theme of wrong or deceptive affinities that had already been illustrated by Jude and Sue.

It is under the shadow of such hints as these that Sue deserts Phillotson and embarks on her free, unauthorized relationship with Jude (IV, 5). This is one reason why their new relations begin on an inauspicious note. Another reason concerns the way in which Sue and Jude both finally extricate themselves from their first marriages. When Sue begins to live with Jude, both are still married, so that their cohabitation gives the appearance of adultery. Yet Jude the Obscure is not a novel of adultery: no adulterous act ever occurs between the hero and heroine. If Sue refuses at first to have carnal relations with Jude, however, her refusal can hardly be ascribed to a respect for the convention of marriage. We have already seen that she was perfectly willing to undermine that convention from within by refusing to have sex with Phillotson, even while living with him as his wife. Beyond the reason of her lack of physical passion, she may decline to have sex with Jude also because, as an act of adultery, that act would confirm the legal claims of marriage in the way that any transgression confirms the existence of the law it transgresses against. Adultery is the "other" of marriage in the sense that it is the other side of the same coin. Disillusioned as she now is with marriage, Sue is seeking, whether consciously or unconsciously, a way out of what she sees as the false alternative between legal and illegal acts of sex. A radical putting into question of marriage will no longer acknowledge the relevance of the opposition between acts that occur "within" marriage and acts that occur "outside" of it.

There is yet another twist to Sue's undermining of the institution of marriage. Although she is unwilling to commit an act of adultery, she is willing to practice a deception and give the appearance of engaging in adultery. It is this appearance, as she must know, that will move Phillotson to seek and obtain a divorce from her. Their divorce is announced in the novel at the same time as Jude's divorce from Arabella (V, 1). In each case the wronged husband has successfully sued for divorce on me grounds of his wife's infidelity. Arabella's adultery has been real, but Sue's is only feigned. When her divorce is announced, she expresses to Jude her doubts as to its validity, since it has been obtained under "false pretences":

"Well—if the truth about us had been known, the decree wouldn't have been pronounced. It is only, is it, because we have made no defence, and have led them into a false supposition? Therefore is my freedom lawful, however proper it may be?" (V, 1).

Jude is thrust into the position of the interpreter of the law, and he responds with what is no doubt the correct interpretation, especially from the point of view of speech act theory: "One thing is certain, that however the decree may be brought about, a marriage is dissolved when it is dissolved" (V, 1). Phillotson's divorce from Sue is "felicitous" because it has been pronounced by the court that has the institutional power to bring it about. A mere inconsistent fact like Sue's innocence, especially since it has been concealed from general knowledge, cannot get in the way of the workings of justice. In any case Sue finds it in her interest now to let the divorce proceed. Yet her question does raise a disturbing point about the validity of the divorce. In a sense Sue has undermined the convention of divorce through her feigning of adultery just as much as she undermined the convention of marriage by merely pretending to live in physical union with her husband. Though her divorce is valid in the eyes of the public, Sue knows that it is based on a misapplication of the letter of the law.

Consequently there is much ambiguity in her question as to whether her newly won freedom is "lawful." Most simply, she is asking whether divorced people return to the state of freedom they knew before marriage: "Are we—you and I—just as free now as if we had never married at all?" (V, 1). But clearly the freedom of being divorced is not the same as the freedom of never having been married, if only because the freedom one has now is "lawful." The free relation into which Sue is about to enter with Jude, supposedly based on a natural affinity, should exist prior to, or outside of, the law altogether. Instead, Sue's question implies—whatever the response to it may be—that their relationship is already inscribed within the law. (And it was obviously part of Hardy's tragic design that the two should not even meet until Jude was already bound in marriage to Arabella.) Moreover, because of the irregularity in Sue's divorce, mere is the implication that her relationship with Jude, far from being pristine, is based on a misunderstanding, a legal error. This new phase of the novel, then, which according to a more reassuring scheme would have signaled the vindication of Hardy's view on the dissolubility of marriage, begins on a distinctly false note—a note that will only get more strident as Sue and Jude persist in trying to make a life for themselves.

It does not take the narrative long to establish that divorce offers no solution to Jude's and Sue's problems. The freedom supposedly won through divorce does not emancipate them but only increases the awkwardness of their situation. Jude, indeed, takes it for granted that they should now regularize their relationship by marrying each other. His argument in favor of a new marriage, however, is scarcely persuasive: "People go on marrying because they can't resist natural forces, although many of them may know perfectly well that they are possibly buying a month's pleasure with a life's discomfort" (V, 1). He has obviously absorbed the lesson that Hardy already sought to drive home at the time of Jude's wedding with Arabella. The appeal to the "natural forces" of sexual desire is not calculated to convince Sue, who, as we have seen, is particularly repelled by the image of a sexual activity enforced by a code of law. The argument that Sue presently hears from Arabella—that she should marry because to be a wife is a social and economic convenience—has just as little appeal for the unconventional Sue.

There follow the agonizing chapters in which Sue and Jude persuade themselves to be married and go so far as to publish banns and even go to the registrar's office on the morning appointed for their wedding, only to be scared away by the sight of another, obviously ill-suited couple (V, 3, 4). After this they arrive at a compromise, which is to let others believe that they are married even while really remaining free of "the sordid conditions of a business contract":

The result was that shortly after the attempt at the registrar's the pair went off—to London it was believed—for several days, hiring somebody to look to the boy. When they came back they let it be understood indirectly, and with total indifference and weariness of mien, that they were legally married at last. Sue, who had previously been called Mrs. Bridehead, now openly adopted the name of Mrs. Fawley. (V, 6)

Once again, Sue is subtly subverting the institution of marriage. Earlier she had lived with Phillotson as man and wife but had refused him the sexual intimacy that would consummate the letter of their contract; now she lives with Jude, granting him the sexual relationship (after she is driven to do so by jealousy of his relations with Arabella) and claiming to be his wife but declining the contractual oath that would really make her such. By "adopting" his name, Sue mimics that very consequence of the marriage contract that she resented in her marriage to Phillotson. Yet this adoption of the name is "infelicitous" in the absence of the marriage ceremony; her calling herself Mrs . Fawley is not the same as the law's calling her by that name. As she later admits to the landlady in Christminster: "though in [Sue's] own sense of the words she was a married woman, in the landlady's sense she was not" (VI , 1). What Jude and Sue consider they have done is to enter into a "natural" marriage, just as binding on them as a civil one would be but with less potential for cruelty. Yet it is significant that this natural union must immediately mask itself by adopting the forms of civil marriage.

The problem for Jude and Sue is precisely how to find a way to retreat, to recover a state of existence that is outside of, or prior to, the civil law of society. The latter stages of Jude the Obscure show that their attempt to do so inevitably fails, for two reasons: first, because their continuing ties to society make it impossible for them to escape society's laws, and second, because even an escape back to a putative state of nature would only reveal that nature too already articulates itself in terms of "laws," laws that offer only a false alternative to those of society.

It has often been observed that Jude, the last of Hardy's novels, portrays a world that is more social and less natural than the world of any of the earlier novels. Jude's profession is strictly an urban one, unlike the agricultural occupations prominent in most of the novels through Tess of the d'Urbervilles. Not only are Sue and Jude obliged to continue living in towns but his work brings him forcibly up against the very incarnation of social law. The episode Hardy chooses to illustrate this confrontation occurs in Aldbrickham, when Jude receives the commission to repair the lettering of the Ten Commandments in a small church. When Sue begins to assist him in the work of relettering the biblical phrases, this scene becomes the exact counterpart of that early scene when Jude first saw Sue in the act of illuminating the word "ALLELUIA." Sue herself notes the irony in their new employment: "that we two, of all people, with our queer history, should happen to be here painting the Ten Commandments" (V, 6). The two of them are working to restore the very "letter" of the law that neither of them now believes in, and which seems at least to admonish their own conduct in the form of the seventh Commandment.

Their full relationship to this letter, however, is suggested only by means of the story that the churchwarden tells (within their hearing) to some women who have entered the church and have begun to gossip about Sue and Jude. This gossip prompts the warden to narrate his anecdote, almost a legend, concerning a similar restoration of the text of the Ten Commandments in a nearby church about one hundred years earlier. This task, too, had been assigned to workers who were unfit because they drank on the job. After drinking themselves into a stupor, they woke up to find a thunderstorm raging and a "dark figure," an image of the devil himself, completing their work for them. Only the next day did the workers learn that "a great scandal had been caused in the church that Sunday morning, for when the people came and service began, all saw that the Ten Commandments wez painted with the 'Nots' left out" (V, 6).

The anecdote suggests that Jude and Sue, like the devil, are capable of removing the negatives from the injunctions that stand at the source of the Judaeo-Christian religion. This suggestion has a certain plausibility, not only because Jude and Sue's immorality, at least in the eyes of the public, makes their work on the Ten Commandments subversive but also because they in fact are striving to live outside of all enunciated codes of law. For them, the Ten Commandments serve as a symbol of the social constraints under which they live. Sue will remark later to Jude: "There is something external to us which says, 'You shan't!' First it said, 'Yo u shan't learn!' Then it said, 'Yo u shan't labour!' Now it says, 'Yo u shan't love!'" (VI , 2). Sue images the social (and the religious) law as a voice issuing negative commands. This voice cannot be the simple "enunciation" of the law of nature, as Hardy's Postscript to the novel suggests it should be, because nature, like the Freudian unconscious, knows no negatives. The idea of Sue's and Jude's removing the "nots" as they reletter the Ten Commandments, then, points to their desire to rewrite the social and theological laws in order to make them conform better to the law of nature. Yet such an attempt, the novel is suggesting, would be doomed. For removing the negatives from the commands still leaves them as commands—positive commands now but no less arbitrary and peremptory.

Jude and Sue, of course, through most of the novel, continue to harbor hope for a way of life that lies outside of, and prior to, the "letter" of the social law that is persecuting them. Their regressive impulse to recapture a putative state of nature is felt, most obviously, in their association with and concern for wild animals: the birds that Jude is punished for trying to feed in the second chapter of the novel, the rabbit caught in a gin that he puts out of its misery (IV, 2), the pigeons that Sue sets free as she and Jude prepare to leave Aldbrickham (V, 6). These trapped and suffering animals become, in the protagonists' minds, emblems of their own victimization at the hands of society, as when Jude calls Sue "my poor little bird" (IV, 2) or when, just a few pages after the incident of the caught rabbit, he converts the trap into a metaphor for his own condition: "is it the artificial system of things, under which the normal sex-impulses are turned into devilish domestic gins and springes to noose and hold back those who want to progress?" (IV , 3).

Despite the appeal of this figurative equation between man's treatment of animals and society's treatment of the individual, Jude is guilty here of nostalgic self-deception. As was the case in Tess of the d'Urbervilles, the protagonists in this novel also find themselves struggling against the cruelty not only of social laws but of the natural law as well. This cruelty is in fact already present in the nature or animal scenes that Jude offers. As early as Part I, in the scene in which Jude is supposed to be protecting the farmer's fields from the rooks, those fields are described as the site of a quite different natural or "lawless" activity:

Love-matches that had populated the adjoining hamlet had been made up there between reaping and carrying. Under the hedge which divided the field from a distant plantation girls had given themselves to lovers who would not turn their heads to look at them by the next harvest; and in that ancient corn-field many a man had made love-promises to a woman at whose voice he had trembled by the next seed-time after fulfilling them in the church adjoining. But this neither Jude nor the rooks around him considered (I, 2)

This indiscriminate lovemaking, in the scenarios the narrator proposes, can remain free and illegal or can lead to marriage; either way the result is usually cruel. Though Jude is oblivious to such cruelty at this early point, later episodes will educate both him and Sue into a tragic consciousness of man's and animal's inability to escape victimization. The rabbit caught in the gin cannot be freed by Jude but only put out of its misery quickly. Sue's later reflection on the pigeons she frees is, "O why should Nature's law be mutual butchery!" (V, 6). Shortly after this, Phillotson will remark to Arabella: "Cruelty is the law pervading all nature and society; and we can't get out of it if we would!" (V, 8).

These ruminations on nature's law reach their climax, of course, in Sue's conversations with Little Father Time, conversations that lead directly to the latter's suicide, the catastrophe of Part V I . When Father Time, with characteristic lugubriousness, asks Sue why children are born, she replies, "because it is a law of nature." When she goes on to tell him she is pregnant once again, the boy responds, "How ever could you, mother, be so wicked and cruel as this, when you needn't have done it till we was better off, and father well!" This speech is Father Time's last in the novel. Two pages later, Jude tries to alleviate the guilt Sue feels for Father Time's murder of their children and his subsequent suicide by saying, "It was in his nature to do it" (VI , 2).

Having rejected marriage, Jude and Sue are thrown back upon the laws of nature. But these laws turn out to have a cruelty of their own. In fact, the cruelty resulting from the laws of nature resembles the cruelty brought about by laws of man: both kinds of law have a relentless universality, an indifference to the fate of the individual. When Sue attributes her pregnancy to the law of nature, she is not so much finding a positive explanation as she is evading an admission of her own sexuality. Jude had earlier cited the natural sexual drive as the primary reason why most people marry. It is as if the laws of nature can be used to motivate any kind of behavior, social or nonsocial. In their monolithic, universal quality, the laws of nature become arbitrary, cruel, and machinelike. We are reminded that Hardy in his postscript had called the marriage laws the "tragic machinery" of his tale. Nature's law, as the novel represents it, is no less a part of Hardy's machinery, and it is between these two machines that the tragic hero and heroine find themselves squeezed.

It is left to Sue to draw the most important consequences from the new situation which is brought about by Little Father Time's murder-suicide. The boy's act is a response to his reflection on the law of nature, and Sue's own response to that act will take the form of a reinterpretation of the laws of marriage. It is the conclusion of the novel from this point on that many readers have felt to be unbearable, both because of the overwhelming pessimism implied in the events of the denouement and because of the strain placed on our credulity by Hardy's apparent manipulation of the catastrophe, and also, perhaps, by Sue's swift psychological turnabout. It is hard to deny that Hardy is here manipulating the plot for his tragic effect—but, then, he has been manipulating it since the beginning. To deplore Sue's conduct here as being either perverse or inexplicable, which is the reaction of practically all the other characters in the novel, is to miss the centrality of that conduct to the novel's main theme. The importance of the ideas Sue begins to articulate after the death of her children is suggested by the fact that even Hardy's narrator seems to disapprove of them. Sue is becoming the spokesman for the tragic design of the novel itself, a design that is more profound than the opinions of the other characters, the narrator, or even the "author" Hardy, who spoke optimistically in his postscript about the "dissolubility" of marriage. Sue almost single-handedly accomplishes the tragic conclusion to the novel by denying the view that marriage is dissoluble.

Sue's new position is all the more remarkable because it hardly seems to be the inevitable or logical response to Little Jude's murders. Her sense of guilt for the children's deaths, if that is what it is, appears misplaced. Little Jude's famous suicide note, "Done because we are too menny," with its pun on "men," accuses the natural order of reproduction and the human condition itself. Sue, however, is unwilling to assign blame either to the human condition in general or to the explanation Jude proposes, that is, that the boy was the harbinger of a "coming universal wish not to live" (VI , 2). Rejecting historical and existential explanations, Sue seeks a legalistic one: she chooses to interpret the deaths as the punishment for the infraction of a religious law that is embodied in a social code, and she sees her own sole chance for atonement in a conscious "submission" to that code—indeed, in a ringing reaffirmation of it (VI , 3).

When Sue first announces her new views on the indissolubility of marriage, the ensuing argument between her and Jude seems to take the form of a blocked dialectic. Jude argues that their relationship is "Nature's own marriage," and Sue responds, "But not Heaven's" (VI , 3). The terms of the dichotomy, at least, are new. Whereas both the protagonists had earlier appealed to nature as a positive law in contrast to society's negative one, nature is now being contrasted, to its disadvantage, with religious law. Now that Sue recognizes the religious underpinning of the marriage ceremony, she sees the ceremonial act as having an absolute, inviolable "felicity" that makes it indissoluble. Their debate centers, once again, on the question of performative speech acts and their binding quality. Jude pleads: "We still love.… Therefore our marriage is not cancelled." Sue not only denies this but insists that her marriage to Phillotson has never been interrupted: it is the divorce act that for her now becomes "infelicitous," totally without authority. Hence, the new wedding with Phillotson is not strictly necessary, except in society's eyes: "[Phillotson] is going to marry me again. That is for form's sake, and to satisfy the world, which does not see things as they are. But of course I am his wife already. Nothing has changed that" (VI , 4). There is indeed something extreme and perverse about Sue's new adherence to the law of conventional acts. Formerly, she had undermined convention by going along with the outward forms of marriage even while refraining from the behavior that would give meaning to the ceremony; now she has become a formalist holier than the Pope, willing to perform a redundant, repetitive ritual only because society at large has reneged on its faith in the binding force of the original act.

Sue's actions from now on constitute a careful reversal of all her previous actions and ways of thinking, which, as she now believes, led to catastrophe. Her acts are not only a reversal but also a repetition—repetition being the necessary mode of the tragedy Hardy is composing. Sue now insists on an almost maniacal enactment of the letter of the law that she had previously flouted. And Jude says in protest: "Sue! we are acting by the letter; and 'the letter killeth!'" Jude's interpretation is just as correct as Sue's action is necessary. At first, perhaps she herself is not aware of how absolute is the process of repetition that she is instigating. After her second marriage to Phillotson, when Jude gets out of his sick bed to visit her, she is capable of equivocating to the extent of telling him it is "only a church marriage—an apparent marriage I mean.… a nominal marriage" (VI , 8). In fact, she has up to now refused sexual relations with Phillotson, thus undermining their second marriage just as she had their first. But right after this scene, and as a consequence of it, Sue forces herself to the most painful act of penance of all (painful for both her and the reader) as she enters Phillotson's bed (VI , 9). In the meantime, one final act of repetition has occurred, more ridiculous than sublime: Jude's remarriage to Arabella has provided a wrenching parody of Sue's new union with Phillotson.

The two weddings at the end of the novel do not, of course, reestablish the legitimacy of marriage as an institution. The arguments Hardy has made against marriage through his narrative voice and his plot continue to hold, and perhaps even gain in force. Yet Sue's stated reasons for returning to Phillotson suggest that the state of marriage is in a sense inevitable for all the characters, and that the alternative between marriage and a state of natural freedom is a false one. Sue's actions reveal that finally the social law is only an "enunciation" of the natural law—but what it also enunciates is the latter's cruelty. The stalemate, or indeed regression, that characterizes the last phase of the plot, and which is the source of the novel's tragedy, arises from the exposure of the false alternative between the dictates of a social and of a natural way of life.

What happens to the opposition between social and natural law by the end of Jude the Obscure can be compared to what happens to the opposition between performative and constative utterances by the end of Austin's How To Do Things With Words. At the outset, Austin treats constative utterances as the norm and performatives as a special case. Before the end of his short work, however, he has decided that constatives are only a special case of illocutionary speech acts, all of which are in a sense performative; as Stanley Fish puts it, "the class of exceptions thus swallows the normative class." In Jude the Obscure the natural law initially seems to be prior to the social law, which must be interpreted either as an "enunciation" or a deformation of it. By the end of the novel, these two laws are threatening to collapse into one, or rather they become two versions of a system of determinism that governs human fate. There is no real alternative to living in the domain of performative speech acts such as commands (the Ten Commandments) and promises (the marriage oath). The marriage laws become Hardy's "tragic machinery" for conveying man and woman's plight; the ultimately false options between marriage, adultery, and divorce represent the false options (which nonetheless continually entice Jude and Sue) between a life in society and a life in nature. There is no authentic possibility of a life outside of the law in Jude; even the animals in this novel are caged, confined, or regulated. The theoretical possibility of a natural way of living—the kind of life associated with the theory of the elective affinity binding Jude and Sue—has disappeared, along with the natural landscape of Wessex that played such a great role in Hardy's earlier novels but is no longer visible in Jude.

It is this dilemma that Hardy is indicating in the epigraph to his novel: "The letter killeth." It is significant that Hardy did not go on to quote the rest of the biblical phrase, "but the spirit giveth life." Jude is depicting a new world, one in which the opposition between the letter and the spirit no longer operates; it is the world of the letter alone. It is Sue who in the novel best recognizes this world for what it is, Sue who is first seen engraving the word "ALLELUJA," and who is last seen reentering the marriage bed of her lawful husband.