Mythology & Law

Dr. Nim Batchelor

Elon University

June 14, 2001

Some General Characteristics of Myths

Myths are NarrativesNot 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 MythsMyths govern the way we see reality and the way we behave.Many mythic traditions include:

creation mythsstories about the characteristics and exploits of the godsstories of love and lossstories 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 RightsThe Civil War AmendmentsWomen's suffrageThe Lochner eraBrown vs Board of EducationThe 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 ScaliaVs.

John or Thurgood Marshall

Coming of Age StoriesIf 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 LawThe 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 ReferencePerspective 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.