THE MYTH OF MODERN LAWTHE MYTH OF MODERN LAW

“LADY JUSTICE” – JUSTICIA, THE ROMAN

GODDESS OF JUSTICE.

GENERAL DEFINITION: A society's shared stories, usually involving Gods and heroes, that explain the nature of the universe, the relation of society and the individual to it, origins, etc. Mythic narratives embody and express a society's rituals, institutions, and values.

ANTHROPOLOGICAL DEFINITION: Stories told and realities lived.

SIR JAMES FRAZERSIR JAMES FRAZER1854-19411854-1941

A Scottish ethnologist. The Golden Bough (1890-1915):

compares the myths, magical practices, and religions of the world’s cultures throughout history.

Frazer developed the social evolutionary model of:

MAGIC > RELIGION > SCIENCE He asserted Australian Aborigines

were the most primitive of all because they practiced only, what he defined their spirituality as, magic.

THE EUROPEAN ENLIGHTENMENT MOVEMENTS AND “NATURAL RELIGION”

• DEISM: A pure “natural religion.”

• A Creator made the world, but leaves it to operate according to natural laws, a parallel set of moral laws to guide human conduct, and the promise of an afterlife that rewards good and punishes evil.

• Liberal European Enlightenment thinkers asserted this was the religion of the very first humans.

• The best hope for humanity is that it be revived and practiced universally as a “brotherhood” throughout the globe.

• Deism was a force in the formation of naturalistic and scientific viewpoints of the “Founding Fathers” of the US.

The Freemasons’ emblematic triad of “brotherly love, relief, and truth,” and their ideals of charity, tolerance, fidelity, and uprightness corresponded with liberal European Enlightenment thought.

French Enlightenment philosopher, Voltaire, was a Freemason

The first encyclopedia was written and compiled by other important French Enlightenment philosophers, including Freemasons: Diderot Condorcet D’Alembert Helvetius

US “Founding Fathers” who were Freemasons: George Washington Thomas Jefferson Benjamin Franklin Paul Revere Marquis de Lafayette

LIBERAL GRAND NARRATIVES OF WESTERN MODERNITY• “Tell stories” about how RATIONAL societies will progress through:

• The social contract• Human reason• Positivistic science and technology• Secular social institutions

• Modern law is elemental to the liberal grand narratives of Western modernity.

• Myths and superstitions are of Europe’s irrational, pre-modern past and not part of Western modernity.

• Western religion is a personal, private matter that is to be kept separate from social structural processes of the public sphere.

• “Non-Western” myths, superstitions, and spirituality are “primitive.”• Freud: The individual’s ego mediates the id, superego, and external

world to control the id’s primitive instincts and primal desires so she or he can be a part of civilized modern society.

• The Liberal Grand Narratives of Western modernity: • Assert a universal truth applicable to all individuals and societies.• Make claims to an “origin” – that Western, rational modern people

historically developed from primitive to civilized.• Identify as rationally “Occidental” in contrast to irrational

“Others.”

LIBERAL EUROPEAN ENLIGHTENMENT AS THE “ANTI-MARVELOUS”

Both Friedrich Nietzsche and Max Weber characterized Western Modernity as “the death of God,” and an end to the enchanted and mystical qualities of the universe.

Modern intellectual elites are socialized to evaluate the marvelous qualities of human existence and creativity, and the “natural” world with studied indifference.

CONTRADICTIONS OF WESTERN MODERNITY Modernity asserts universal truth and thus is “totalizing,” while—at the same time

—it espouses individualism in which each person is an autonomous agent. It claims to be the venue for freedom, equality, justice, and progress beneficial to

all, yet from its inception during the European Age of Imperialism, its identity has been predicated on gender biased, heteronormative patriarchy, and in contrast to and exclusion of constructs of the “primitive” other.

MARSHAL SAHLINS: Europeans are one of the only cultures that construct its origin as savage and backwards. Others view theirs as coming from Gods.

FREUD: The rational subject denies and represses primitive instincts and primal desires, relegating them to the unconscious where they surreptitiously impact a person’s thoughts and behaviors.

HORKHEIMER AND ADORNO: Expand upon Freud’s model to critically analyze how rational modernity denies and represses the “Other of reason” – namely, myth and nature. However, this only serves to draw out new and more destructive mythical forces. In the attempt to master self and nature through control and objectification the rational subject conceptually destroys what is natural, both internally and in the exterior social world. The modern subject is now captive to self-created forces beyond their control, and the globe is at the brink of self-destruction. (Dialectics of Enlightenment, 1979.)

“ “MYTH IS ALREADY ENLIGHTENMENT MYTH IS ALREADY ENLIGHTENMENT AND ENLIGHTENMENT REVERTS TO MYTH”AND ENLIGHTENMENT REVERTS TO MYTH”

Emerging from the European Enlightenment movements, Western modernity is grounded in the teleological narrative form—exposition, complications, climax, resolution (origin, foundations, and trajectories of progress).

Thus, Western modernity eschews myth as pre-modern, primitive, and irrational, YET its entire premise as a universal Grand Narrative is based in the logic of myth.

Modernity mythologizes its texts, such as the US’s Declaration of Independence, constitutions of Western liberal nation-states, the Universal Declaration of Human Rights, etc.; the scientific works of Darwin, Freud, Einstein, etc.; and the modern literature of James Joyce, F. Scott Fitzgerald, Carl Sandburg, etc.

The conundrum: “how this presence of myth can be reconciled with its denial in modernity. The answer is that the denial is the myth.” (Peter Fitzpatrick, The Mythology of Modern Law, 1992)

*Modern law is part and parcel of the liberal Grand Narratives of modernity, and thus is based in the logic of myth and in mythologizing its legal texts.

*Modern law emerged during the European Age of Imperialism and is “a creature of colonialism.”

*Modern law bases its identity in myths of the liberal nation-state and ideologies of nationalism, the social contract, individualism, and the rationality of science and secular social structural processes.

*In its efforts to avoid myth, modern law denies certain “myth-ridden others.” However, this negation is a narrative in itself that serves to illuminate the myth of modern law.

*Myth has constituted a heteronormative, male legal ideology that has created and empowered gender based structures.

*Modern law’s motto of “blind justice” is a myth of objective impartiality as the law is steeped in racial, ethnic, gender, sexual orientation, class, religious, national origin, challenged, and age biases. (Fitzpatrick)

IN MODERN LAW’SREPRESSION ANDDENIAL OF ITS MYTHICCHARACTERISTICS, MONSTERS FROM THE PAST--

--RE-EMERGE INDIFFERENT FORMSIN THE PRESENT

AS SALLY ENGLE MERRY BROUGHT OUT IN HER “INTRODUCTION” TO COLONIZING HAWAI’I, COLONIZED PEOPLES USED THE IMPOSED MODERN, WESTERN LEGAL

SYSTEM FOR RESISTANCE , SUCH AS IN ASSERTING THEIR RIGHTS.

IN AUSTRALIA, ABORIGINES TURNED TO MODERN WESTERN LAW TO ESTABLISH THEIR RIGHTS TO ANCESTRAL LANDS.

LEGAL INCOMMENSURABILITY OCCURRED WHEN THEY COULD NOT PRODUCE DOCUMENTS, BUT INSTEAD TESTIFIED THAT THE LAND WAS THEIRS

BECAUSE—FOR EXAMPLE---THE SPIRIT OF THEIR CLAN’S EUCALYPTUS TREE TOLD THEIR ANCESTOR IT WAS, AND THIS STORY HAS BEEN PASSED DOWN ORALLY FOR

MANY GENERATIONS. COURT PROCEEDINGS WOULD THEN BREAK DOWN.

AN EXAMPLE OF A LEGAL SYSTEM IN DENIAL OF ITS OWN MYTHIC FOUNDATIONMARGINALIZING WHAT IT JUDGESTO BE THE “MYTH-RIDDEN OTHER.”

WILLIAM MULHOLLAND• He was an uneducated Irish immigrant and a self taught engineer who became chief

engineer and superintendent of the LA water district in the early 20th century.

• His vision was for LA to become a thriving economic metropolis by making its natural semi-arid desert “bloom” with imported water. He managed construction of the 233 mile long LA Aqueduct that diverted water from the Owens River to the city.

• Political and legal corruption divested Owens Valley farmers of their water rights.

• Financial backers of the LA Aqueduct became rich while Owens Valley residents suffered complete financial ruin.

• LA needed more and more water, so Mulholland had a number of dams built.

• One was the St. Francis Dam that collapsed in 1928 killing over 500 known people, but it is estimated the death toll is much higher due to “nameless” migrant farm workers and “hobos.” The resulting flood swept through Ventura County to the Pacific Ocean destroying property and farmland top soil.

• Mulholland was held accountable for not consulting independent experts in designing the dam, and for filling it with water too fast.

• Whether it was Mulholland, or the era’s lack of knowledge about the placement, subsoil type, and engineering of dams that was at fault is still under debate.

• Publically, Mulholland took full responsibility for the disaster.

GENRE FILM AS MODERN MYTHGENRE FILM AS MODERN MYTH• Film theorists and critics define genre films as the mass-mediated mythic

tales of the 20th and 21st centuries.• The characteristics of genre films include repetitions and variations on a few

conventional plots, iconic characters, endemic scenes, and the reduction of complex conflicts to a binaric pattern of good versus evil.

• Accordingly, audiences have certain expectations that they assume will be met when they view a genre film.

• Genre films, including those set in different eras such as “Westerns,” resonate with the social memories of their audiences and satisfy by resolving contemporary social issues through an entertaining format.

• ROLAND BARTH: Genre films are ritualized reflections of a culture’s dominant ideologies and support their values as right and natural. They marginalize and delegitimize alternative or resistant ideologies and values. As cultural myths, genre films depict the “Other” either as monstrous or exotic, never as a rounded character with their own culture.

• Once a genre has been firmly established over a long period of audience viewing, filmmakers can then parody, play with, or otherwise manipulate generic conventions.

THE WESTERN GENRE MYTHICALLY LEGITIMATES IMPERIALISM, MANIFEST DESTINY, AMERICAN

INDIVIDUALISM, AND RACISM. IT ALSO PERPETUATES THE MYTH THAT THE WEST WAS A “WILDERNESS” BEFORE

ANGLO-AMERICANS SETTLED IT.

MUSICALS AND ROMANTIC COMEDIES SUPPORT HETERONORMATIVE SOCIAL VALUES.

THE “HARD BOILED” DETECTIVE DRAMA IS A MYTH OF CRIME AND JUSTICE THAT SUPPORTS AMERICAN INDIVIDUALISM AND THE “RULE OF

LAW.” THE AUTONOMOUS PRIVATE DETECTIVE GENERALLY HAS CONFLICT WITH POLICE BUREAUCRATS WHILE SOLVING A CRIME.

BUT HE IS A MAN OF LOYALTY AND PRINCIPLES. IN THE END HE UNRAVELS THE MYSTERY, APPREHENDS THE CRIMINALS,

AND HANDS THEM OVER TO THE AUTHORITIES.

CHINATOWN• Set in Los Angeles of the 1930s during a draught, and based on William

Mulholland’s project to supply Los Angeles with an abundance of water.

• It begins as a hard-boiled detective film, but then proceeds to dismantle the genre’s conventions while retaining its own unique mythic milieu.

• The private detective’s name is “J.J. Gittes” subtly insinuating he is not Anglo-American, but of some ethnic heritage.

• Noah Cross, whose name is a play on Christianity’s biblical flood story, is involved in corruption to control LA’s water supply and buy up valley farmland at reduced values as they falter with the draught.

• The rich and powerful Noah Cross is consciously driven by his id to satisfy his primitive instincts. He “owns the police” so he does not merely evade justice, he controls justice, and in the end he procures the object of his primal desire.

• LA is binarically divided between “Occidental” neighborhoods of different socioeconomic classes, and Chinatown, the “Oriental” spatial domain of the “mythic-ridden other.”

• Gittes and other characters make racist remarks about Chinatown as a place of mysterious disorder that is beyond the bounds of modern Western law.