Leiden Law Blog

Reaching beyond patriarchal boundaries

Reaching beyond patriarchal boundaries

In a previous blog I paid attention to Peter Fitzpatrick’s insight that – contrary to the still widespread belief that we have left the ‘primitive’ world of myth behind us for good – the power of myth hasn’t disappeared at all from the world of law. It is interesting that in the 19th century there were already legal scholars who seriously studied the world of myth. In this respect Johann Jacob Bachofen (1815-1887) in particular comes to mind, a Swiss jurist and historian of law who wrote some significant books in which myth played an important part.

Matriarchal roots

I suspect that not too many legal scholars today will be familiar with his writings. Perhaps they have vaguely heard of his study about ‘mother right’ (Das Mutterrecht), in which he argued that preceding the patriarchal world we live in there once universally existed a matriarchy. They might also have heard that his ideas have caused a lot of controversy and debate, which finally resulted in them being rejected by most academic researchers. It is not often stressed that it was his background in law which inspired him to do his mythological research.

Between rejection and reception

The reasons to reject his ideas have not always been purely scientific. The fact that a Marxist like Friedrich Engels had treasured them and included them in his book The Origin of the Family, Private Property and the State at the end of the 19th century, put Bachofen permanently in a very negative light in the capitalist West. This might be the most important reason why we had to wait until 1967 before a collection of his work was translated and published in English, in a book entitled Myth, Religion and Mother Right. This book primarily caught the attention of some feminist researchers and artists, who in their fight against patriarchal powers understandably found new inspiration in the ideas of Bachofen. But unfortunately this has not helped to give him the academic credit he deserved. Actually, there have also been male scholars who admired his work: for instance, Robert Briffault, who early in the 20th century wrote The Mothers, and more recently the American mythologist Joseph Campbell, who wrote an extensive introduction to ‘Myth, Religion and Mother Right’.

The Oresteia by Aeschylus

Interestingly, Bachofen discussed the Greek theatre trilogy The Oresteia by Aeschylus – which is still considered an important source of inspiration for our modern idea of justice – to prove his point. In these well-known plays the story is told about Agamemnon who is killed by his wife Clytemnestra, and about Orestes who avenges the murder of his father by killing his mother, Clytemnestra.
These are some of Bachofen’s insights drawn from it: ‘Celestial and Olympian is the right of the father, proclaimed by Zeus (…); and chthonian, subterranean, is the right of the mother; like its advocates, the Erinyes, it springs from the depths of the earth.’ When father right finally is established: ‘The child’s predominant connection to his mother is relinquished. Man is raised above woman. The maternal principle is subordinated to the spiritual principle.’ Bachofen acknowledged that there is a universal and positive law at work behind this development: ‘One great law governs the juridical development of man. It advances from the material to the immaterial, from the physical to the metaphysical, from tellurism to spirituality.’

Opening unknown doors

These few sentences make it clear that Bachofen’s worldview was not a feminist one. Unlike his 20th  and 21st century feminist ‘followers’ , Bachofen was very much on the side of patriarchy, which he considered a higher form of civilization. In this sense he was very much a 19th century man. Like his contemporary Darwin, he paradoxically considered ‘the descent of man’ an ‘ascent’ towards civilization, a linear development from low to high. We should also not forget that in his time there was still a general consensus that cultural development had always been patriarchal in nature, and that in our ‘natural state’ we had been warlike creatures in the Hobbesian sense. Through his ideas about the existence of a completely different pre-patriarchal world, Bachofen opened – probably unknowingly – doors that people did not even know were there: a door to a new awareness of the roots of our humanity and also a door to hope for a better, more peaceful world. (After all, if we had always been patriarchal and warlike at heart, there would be no such hope.)

Indebtedness to an adventurous scholar

I am not pleading here to accept the ideas of Bachofen. The matriarchy as he conceived it has probably never existed. But all thinkers who acknowledge a dramatic historical event which caused a complete change-over or turnaround in the development of human culture are indebted to him. To name but a few: Joseph Campbell (the Great Reversal), Riane Eisler (the change from a partnership to a dominator culture), Carol Lee Flinders (from values of Belonging to values of Enterprise), Leonard Shlain (the advent of the written word), Steve Taylor (the ego-explosion causing the Fall), and Karen Armstrong (the Great Transformation).

What I think is most interesting about Bachofen for legal scholars is that he, of his own accord, had become involved in interdisciplinary scientific research avant la lettre - at a time when the scientific disciplines were only starting to get established. People may consider the insights he gained from his mythological research very dated or even plainly wrong. But his open minded approach to the matter at hand, the way he allowed space for his innate passion to investigate unknown fields and dare to cross boundaries, would still be rare among scholars today. Therefore his adventurous mentality should be praised. 

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