Mythology & Law

1. Mythology& Law Dr. Nim Batchelor Elon University June 14, 2001

2. 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.

3. 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.

4. Every Culture and Era • Since, mythic narratives constitute the social order in every culture in every era, • it is important to be able to-------

5. Adopt the mythic stance-- The Mythic Stance is an intellectual and emotional disposition that: • is alert to the narrative and mythic elements in our culture, and • 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.

6. 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.

7. 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"

8. 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.

9. 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

10. 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.

11. 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”.

12. 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.

13. 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

14. Compare: Kenneth Star or David Boies Vs. William Kunstler or Morris Dees Justice Scalia Vs. John or Thurgood Marshall

15. 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?"

16. 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.

17. 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.

18. 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.

19. Value of the Mythic Stance • 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.

20. Value of the Mythic Stance • 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.

21. Value of the Mythic Stance • 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.

22. Value of the Mythic Stance • 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.