Mythology & Law
Dr. Nim Batchelor
Elon University
June 14, 2001
Some General Characteristics
of Myths
Myths are Narratives
Not all narratives are myths
Myths are never mundane
Myths are communal or personal narratives that
elucidate basic features of the human condition in
a way that constitutes and sustains a conceptual
and/or normative framework that gives
intelligibility and purpose to our institutions,
practices, or individual actions.
More Characteristics of Myths
Myths govern the way we see reality and the way
we behave.
Many mythic traditions include:
creation myths
stories about the characteristics and exploits of the
gods
stories of love and loss
stories about heroic adventures
They help us to manage the "big questions"
They are "user-friendly" touchstones or
guideposts for living a life of integrity and
coherence.
Every Culture and Era
Since, mythic narratives constitute the
social order in every culture in every era,
it is important to be able to-------
Adopt the mythic stance-The Mythic Stance is an intellectual and
emotional disposition that:
1. is alert to the narrative and mythic
elements in our culture, and
2. expects to gain insights, empowerment
or perspective by comparing our
cultural or personal narratives with the
mythic themes, structures, and symbols
found in other cultures or at other times.
Distinguish Social and Personal
Myths
Each individual dwells within a social
context that is constituted by the full set of
social myths.
Within that social context, there is a residual
of creative space within which each
individual can craft their own personal
myths.
Some Social Myths of
American Law
Creation Myth
“Founding fathers”
wrote the Declaration of Independence
conducted the Revolution
participated in the Constitutional Convention
Often given almost god-like qualities
Courage and self-sacrifice as they risked "their
lives and fortunes"
More Mythic Aspects of
American Law
Religion
Constitution as a “foundational scripture”.
“Faith in the Constitution” is a central aspect of
America's “civil religion.”
It is akin to sacrilegious to point out that the
original Constitution endorsed slavery, lacked a
Bill of Rights, and denied women the right to
vote.
More Mythic Aspects of
American Law
Progress
Not a static creation myth that ends in 1789,
For see the addition of:
The Bill of Rights
The Civil War Amendments
Women's suffrage
The Lochner era
Brown vs Board of Education
The civil rights movement
Ultimate Values
We seek justice and social order.
We tell ourselves a myth about “procedural
due process”
Like Adam Smith's “invisible hand”—our
myth tells us that the best way to achieve
justice is through an adversarial system
governed by fair procedures.
Greek Mythology
Themis (Order or Law)
Three Daughters
Dike (Justice)
Eirene (Peace)
Eunomia (Harmony)
According to the story—
Justice, Peace and Harmony provide “the
secure foundation of cities”.
What story do we tell ourselves
about the "secure foundation of
our cities?"
SOCIAL CONTRACT MYTH
the primary values achieved by the social contract
are stability, predictability, and order—i.e., the
rule of law.
lawyers carry out, maintain and advance this story,
they can see themselves as archetypes or heros.
Some Personal Myths of
American Law
Heroes
Who are the heroes in the Legal Story?
What virtues do they exemplify?
Who are the villains and what are their vices?
No unitary conception of the good
Difficult to identify heroes
Compare:
Kenneth Star or David Boies
Vs.
William Kunstler or Morris Dees
Justice Scalia
Vs.
John or Thurgood Marshall
Coming of Age Stories
If the legal practitioner is analogous to the
hero figure:
How do they leave the community?
What is their quest?
What tests do they face?
What virtues are required for success?
What is gained in the process?
How do they bring their gift back to the
community?"
How do American lawyers
complete their heroic journey?
Economic Myth--Pro Bono work as charity.
Not a duty.
Praised if you do it, not blamed if you don’t.
Undeserved economic benefit for those in need.
Coming of Age myth--Pro Bono work as
culmination of your heroic journey.
Greek Mythology & Your
Personal Narrative
Ares (the warrior)
The world dominated by images of battle and
conflict.
Everyone is seen either as an ally or a foe.
The dominant concern is with strategic
advantage.
Alternative Mythic Archetypes
Athena (pragmatic wisdom)
Demeter (the Caregiver)
Hestia (domestic traditions—family and
community)
ADR--mediation or arbitration is often a
better path than adjudication.
Value of the Mythic Stance
1.
Empower change
"The ability to name your myths is the first step
to changing those which are dysfunctional in
your life."
Benjamin Sells' book The Soul of the Law
The mythic stance can help a person to
recognizing the myths, narratives, symbols, and
metaphors of one's social context and of one's
personal vision.
Value of the Mythic Stance
2.
Critical Perspective
Myths have an essentially conservative function.
Not every tradition is worth perpetuating.
Critical Feminists and Critical Race theorists
constantly struggle against the prevailing myths
that perpetuate what they take to be an unjust
and oppressive social order.
Theirs and other similar project can benefit
greatly by adopting the mythic stance.
Value of the Mythic Stance
3. Tradition
Virtue of "having an adequate sense of the
tradition to which one belongs."
Gain a deeper set of insights into the most
profound and noble aspects of the legal
profession.
Help a lawyer to see their work as a
calling rather than merely as a job.
Value of the Mythic Stance
4. Larger Framework of Reference
Perspective that they need to deal effectively
with disillusionment, frustration, or defeat.
Framework of reference that is larger that
yourself
Links the mundane with the transcendent.
Can sustain motivation in difficult times.