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.
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.