Leiden Law Blog

The Rule of Law and the World of Myth

The Rule of Law and the World of Myth

Recently, on my holidays, I came across a book in a secondhand bookshop with a title that immediately appealed to me: The Mythology of Modern Law, by Peter Fitzpatrick. It was the unusual connection between mythology and law that attracted my attention, and its content proved to be very interesting. From a Western perspective the world of law and the world of myth have been considered two totally different worlds. ‘Savages’ had a mythical worldview, and it was generally believed that through the use of reason Western people had managed to civilise themselves and in the process had left this mythical worldview of the ‘savages’ behind them.

Creating order

Fitzpatrick argues however that this is not the case at all: by including the contrast between civilisation and the uncivilised world of ‘savages’ in the concept of law, myth has continued to find expression. The creation of order out of chaos had always been a central theme in the mythical worldview. He shows how shaping an ordered society through the Rule of Law was in fact not any different to the mythical creation of an ordered world. It consisted in consciously keeping the Hobbesian natural state – in which people were basically driven to make war with one another, causing life to be ‘solitary, nasty, brutish and short’ – at a safe distance. It remained a continuous struggle, of course, because there was always the threat of falling back to this natural state.

Possessors and cultivators

Although the Rule of Law originated in the Western world and included Western ideas about property and progress, it was considered to be a universal principle which applied to all human beings. Fitzpatrick states in this regard: ‘Law becomes generally and integrally associated with the mythic settling of the world – its adequate occupation and its bestowal on the rightful holders, the Occidental ‘possessors and builders of the Earth’’. (p. 83) Through the ideas about property and progress, and  later those of Darwinism, the Western people could believe themselves to be more advanced, more evolved in an evolutionary sense. The ‘savages’ were considered to be less evolved, people who somehow had remained stuck in their natural state. And by labelling them as ‘others’, they were excluded – in an absolute sense – from taking part in civilised life.

In this way the concept of law has helped to legitimise the feelings of superiority that the European colonisers through the centuries have felt towards indigenous populations they came across in ‘the New World’. As these indigenous people had not considered themselves the possessors of their land and had left it ‘uncultivated’, the colonisers ‘naturally’ felt they had the right to take possession of this land in order to cultivate it.

The rehabilitation of mythology

Of course the West has stopped colonising countries, and has gradually moved away from thinking about indigenous people as ‘savages’. Yet the fact remains, as Fitzpatrick shows throughout his book, that through the centuries the tension between civilisation and ‘savagery’ has continued to find expression in the ideas of some important law philosophers – from Henry Maine to John Austin to L.A. Hart.

I don’t think we have to make an effort to start cleansing the concept of law of its mythological influences. It’s more fruitful to start on the other side: this could be the chance to rehabilitate the world of mythology. Unfortunately the ongoing rejection of the world of myth has given myth a very negative status, which we can experience on a daily basis: when calling something a myth most people mean that it is a lie, and to demythologise something is generally considered a good thing, a way to discover the truth. Yet since the 20th century there have been many thinkers – to name just a few: James Frazer, Claude Levi-Strauss, Mircea Eliade, Joseph Campbell, Anne Baring and Jules Cashford – who have already tried to show us that originally myth was something very positive, a powerful way to give meaning to life, and that even today our lives can still be greatly enriched by opening up to the power of myth.

The book of Peter Fitzpatrick makes such a welcome re-evaluation of myth possible within the law field. 

4 Comments

Wim Bonis
Posted by Wim Bonis on October 14, 2015 at 09:00

Thanks for your further comments. You´re right that there is a big difference between the myths of the ´earliest people´ and those of the monotheistic religions. In fact, only a few decades ago the monotheistic religions were not even included within mythology, as – for instance – Robert Graves has argued. Mythology was associated with the religions we had stopped believing in long ago, like those of Rome, Greece and Egypt, and even older ones.
Talking about the book of Fitzpatrick, in my blog I referred to the fact that Law – expressing the dominating viewpoint of Western civilisation – contrasted the world of myth with the civilised world. Because of this conviction the concept of ‘myth’ was reduced to the meaning of ‘a lie’, a meaning that is still very much alive today. This makes it quite hard to recognise its power. I think materialism and progress are such unrecognised (secular) myths, which paradoxically came into being because of the denial of myth. The fact that we are hardly able to stop their destructive power – despite all the rational knowledge we have (about global warming for instance) telling us it’s time to leave them behind – reveals their mythical dimension. For me, classifying them as ‘values’ is not powerful enough.

I agree with you that the monotheistic worldview of Christianity elevated us above the natural world, and that this provided the legal system with the means to regulate the exploitation of the earth´s resources. I think both the belief in materialism and progress can be associated – indirectly – to the Christian worldview. However much the Enlightenment reduced its power and gradually replaced it with a scientific worldview, it didn´t end the attitude of feeling evaluated above the natural world.

You mention the tremendous power of governments and corporations these days. I also acknowledge the existence of this power. Yet I think we don’t have to choose between struggling against these powers or ´speaking up for Mother Earth´. We can – and must – do both at the same time. By the way, what a coincidence you mention Thomas Berry! In my new blog about the Rights of Mother Earth – put online today – I mention the book ´Wild Law´, written by Cormac Cullinan. This author was strongly influenced by Berry, who even has written the foreword to it.

Kevin Walsh
Posted by Kevin Walsh on October 12, 2015 at 00:51

I can’t resist making further comments on your post…myths, law, our relationship to the world, they are a fascinating mix! There’s echoes of the philosophy of Berry in your post, and the tacit acknowledgement [by him at least] that creation myths in Christianity facilitated the subjection of the environment to the needs of man. Language evolves, so it is difference to be precise about meanings, but I think that there is a distinct difference between the myths of the earliest peoples, in which the spiritual and the material worlds interchange freely, and the dogmatic myths on monotheistic religions, in which man is elevated above the natural world. Over time, the legal system [ours, for example], regulated, in transactional terms, human exploitation of the resources of the earth - because it is seen as belonging to us. It is hard to see how this can now change without a shift in the values of the power brokers in our human world - governments and the big corporations are where the action is. These will only change when their self-interest is threatened, and that is why the brinkmanship at the successive climate change conferences persists. I think it is more effective to persuade them of the threats to their self-interest than to create a counter-balance of those of us who would speak up for Mother Earth.
I also was a bit uneasy about your characterisation of “materialism” and “progress” as modern myths - aren’t those “values” of modern society rather than myths?

Wim Bonis
Posted by Wim Bonis on October 7, 2015 at 17:11

Dear Kevin,

Thanks a lot for your reaction. I agree with you that we can´t contain the world of myth in the concept of law. But I think we don’t have to. If only we can take the world of myth more seriously and through that – at the same time – can let go completely of our long assumed superiority toward so-called ‘savage’ societies (including our own ancestors), this will definitely have a positive effect on the kind of laws we create.

Taking myth seriously doesn’t mean we should all start familiarizing ourselves again with the half-forgotten mythologies of the far past (although this can be a very enjoyable and inspiring experience!). It means we should acknowledge that in the Western world we haven’t freed ourselves at all from (the power of) myth – myth in the sense of underlying powerful stories that give meaning to important facets of life. Although it is often not recognized as such, our lives are still very much driven by it. There still is, for instance, the myth of materialism:  the conviction that the world is essentially a material world and that our happiness depends on the amount of material possession we can gather for ourselves. And there still is of course the myth of progress: the conviction that through the use of reason our ‘civilised’ society has successfully moved away from ‘savagery’ and that – continuing on this road – it will only get better.

Fortunately there are signs that these myths are gradually beginning to crumble. We don´t talk about ´savages´ anymore but address them more respectfully as ´indigenous people´, making us realise it now has become less a question of us civilising them as it is to allow them to civilise us. They might help us rediscover the importance of immaterial pleasures. They might also help us realise that our society can only become truly civilised when we take full count of the living non-human world around us, and even include it as much as possible. Or even better the other way around: when our society is included in the non-human world. Feeling fully taken up in this larger, all-encompassing world, being part of it, might inspire us to a more expansive worldview, and to creating new appropriate myths to support it.

This might lead not only to the creation of better human rights, but also to the creation of more and better animal rights, and – if we look a bit further – even to the creation of rights for Mother Earth, on whose health all our lives depend. In this way myth can genuinely help to expand the concept of law.

Kevin Walsh
Posted by Kevin Walsh on October 6, 2015 at 00:22

Well, I am not sure it is possible to contain the world of myth within the any concept of modern law! In mythological stories, things happen that neither “natural” law nor western law can explain. The hero is unfettered by law and lives in a savage world where men must keep promises, even if it means losing their heads, and gods can break them. Myths retain an enduring attraction partly to their vitality and partly to their relevance to the human experience of the natural world, to life and to death. While laws are essential to the smooth running of our civilisation, I think it is a stretch to see them as the opposite side of the coin to a mythological world.

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