You will regard my account as a fable,
I regard it as a reasonable story.
(Socrates cited in Edelstein 1949, p. 466)
Abstract
Can mythology be a form of critical theory in the service of right? From the standpoint of an Enlightenment tradition, the answer is no. Mythology is characterised by irrationality, and works to mystify reality, whilst critical theory is set against the irrational, its entire force directed at demystifying reality. In a post-Enlightenment tradition, reason, including critical reason, may take mythological form—indeed, there is identity as much as non-identity between the two forms, a mimetic relationship in which the rational cannot be freed of the mythological any more than myth can stand outside reason. However, the work of critical theory remains essentially the same. Whether in the form of rational myth or mythological reason, critical theory must remain in the service of right in the sense of ‘the true’, and thus remains an enlightenment project. In contrast, the aim of this essay is to put forward a model of critical theory that is sympathetic with mythology, not only in its form, but also in the work that it does, which is not in the service of the true but of the good. That model is Peter Fitzpatrick’s seminal work of jurisprudence, The Mythology of Modern Law (1992). After addressing how Fitzpatrick’s Mythology is in the form of a negative mythology, the essay elaborates the critical work of such mythological critical theory. In the case of Mythology, that work involves creating the conditions for a mythological legal pluralism, through the decolonisation of law.
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Notes
On critical theory’s relation to ‘truth’ in this tradition, see also Adorno (2001, pp. 21–22, 43–45, 50–53, 57–58, 61–63, 107–111, 114–116 and 132–134).
‘Oblivion’, Fitzpatrick notes, ‘extend[ing] Nietzsche’s conception somewhat’, ‘is a constructive forgetting which serves to constitute what is remembered, what is real and effective’ (1992, p. x).
On ‘mute ground’, Fitzpatrick writes: ‘The West’s mythology against myth has all the characteristics it would locate in some savage mythology but it cannot recognize these characteristics as its own. The ground remains necessarily mute’ (1992, p. 10).
On the question of whether the mythic is poetic, Fitzpatrick cites Lévi-Strauss’ argument that myth, unlike poetry, survives translation, which indicates their different linguistic modes. Barthes, too, is said to set myth and poetry in opposition, although Barthes does ‘grant to “classical poetry” the status of “a strongly mythical system”’ (Fitzpatrick 1992, p. 21).
‘The mythology of modernity is sustained in the experience of imperialism. Nowadays, imperialism is usually seen as something marginal, exceptional and evanescent, whereas in my argument it is central, ordinary and enduring’ (Fitzpatrick 1992, p. x).
‘Mediation’ is used here ‘to connote a reconciling of opposites – life and death, light and dark, us and them, legitimate and illegitimate. Resolution or apparent resolution is not necessarily involved since myth will often effect a reconciliation through obfuscation rather than resolution’ (Fitzpatrick 1992, p. 25).
See Fitzpatrick’s critique of jurisprudence in general in Chapter 1, and his critique of Hart’s jurisprudence in particular in Chapter 6, of Mythology (1992).
‘Crisis consists precisely in the fact that the old is dying and the new cannot be born; in this interregnum a great variety of morbid symptoms appear’ (Gramsci cited in Hasan Khan 2017, p. 274).
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Acknowledgements
This essay develops an argument that I put forward in the conclusion of Shane Chalmers, ‘The mythology of international rule-of-law promotion’, Law & Social Inquiry (2019): https://doi.org/10.1017/lsi.2018.32. Warm thanks to Desmond Manderson and the ANU Contemporary Critical Theory Group for the opportunity to present an early version of this essay in the symposium Vertigo: Fake News/Real Theory, convened by the Centre for Law, Arts and the Humanities at The Australian National University in 2018. My attendance at that event was made possible by Dr Myint Zan’s generous grant to PhDs and ECRs. This essay was also made possible by the McKenzie Postdoctoral Fellowship of the University of Melbourne. Warm thanks also to Peter Fitzpatrick for his comments on the essay, and to the editorial staff and reviewers at Law and Critique.
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Chalmers, S. Negative Mythology. Law Critique 31, 59–72 (2020). https://doi.org/10.1007/s10978-019-09246-7
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DOI: https://doi.org/10.1007/s10978-019-09246-7