| |
| META TOPICPARENT | name="FirstEssay" |
|---|
The Myth of Law | |
<
< | -- By RyRavenholt - 13 Mar 2015 | >
> | -- By RyRavenholt - 4 May 2015 | | | | |
<
< | Worship of the Irrelevant | >
> | Experience of Law | | | | |
<
< | The study of law is permeated by two consistent questions, what is the law and what should it be? There is a third question though, which remains strikingly absent, do we want law? Will Durant said that privately every person is an “unphilosophical anarchist, and thinks laws in his own case superfluous.” | >
> | Should law exist in its present form? | | | | |
>
> | It is a simple question that is often given a simple answer, “of course.” American citizens may desire changes as to what is punished and by how much, but the overall assumption is that the law serves an essential purpose that no other institution could fulfill. But of course the function of social sanctioning has been fulfilled by a variety of different institutions throughout human history, and a thousand different institutions might be thought of as an effective alternative to modern law. So why do citizens continue their support for the institution? The answer lies primarily in the myth that surrounds the law. The majority of citizens experience the law almost exclusively through myth, and it is that myth that drives citizens’ acceptance of the law. | | | | |
<
< |
I don't think this is true. You don't really stand behind it either; you use it below as a bridge to a different idea. Perhaps it was a wrong turn.
| >
> | The myth of law serves as the lens through which law is perceived. Myth here is defined as an outlook or understanding of the world shaped by stories, rituals, and ideals. Myth shapes our outlook on law, cultivating an image of law as the eternal guardian of justice, morality, and safety against the ever present threat of violence and disorder. While law indirectly influences the structure of nearly every element of our society, direct exposure to law is actually quite rare. For the majority of the population being arrested, participating in a lawsuit, or being charged with a crime is a rare or nonexistent occurrence. And for the minority that do have frequent interaction with the law, it is often not a pleasant relationship. While the law hangs as a constant threat over people’s heads, its direct application is rare. | | | | |
<
< | While the mind of men can be hard to know, this statement rings with truth when looking at the words of legal advocates. Never does a judge say that the death penalty must stand to prevent himself from murdering another. | >
> | Storytelling | | | | |
>
> | While the realities of law are rarely felt, the myth of law is nearly omnipresent. Pick any day of the week and you are almost guaranteed to find a TV show that is a police procedural, legal drama, or something produced by Dick Wolf. In literature, legal thrillers have sold hundreds of millions of copies. Cable news stations spend weeks covering high profile trials. All of these mediums are telling stories that construct the myth of the law. In these stories a cop’s primary responsibility is the stopping of the ever persistent violent sociopath. A lawyer’s job is to bring the evil and corrupt to justice, and a judge is the one wise enough to dole out the just result. While some of the better story tellers may introduce nuance, ultimately the message stays the same, there are bad guys, they have to be stopped, and these are the people whose job it is to stop them. | | | | |
<
< |
But she doesn't say that its purpose its to prevent murder through perfect deterrence, or that she wouldn't deserve the same punishment should she commit the same crime. I don't think the observation is helpful either way.
| | | | |
>
> | Ritualistic Justice | | | | |
<
< | Never is a law violating the first amendment championed by those who want their own views silenced. | >
> | Beyond storytelling, the ritual surrounding the legal process helps to enforce the myth of law as eternal. Honorific titles and licensed lawyers enforce the idea that this is not simply a discussion of what to do, a discussion that any layman could have. Instead it demonstrates that the process of justice making is something that requires special access to a source of wisdom. Of course juries are given a decision making role in some instances, but even then their decision is ritualized. It is cast not as twelve people making a decision, but as the voice of the community executing the application of the law after it is given by the judge. The ritual of judicial decision writing works to demonstrate that the judge is more an oracle than a decision maker, interpreting the eternal law through the tea leaves presented by lawyers. The vocal grumbling over activist judges illustrates this point perfectly. It demonstrates that fallibility couldn’t possibly lie with the law itself, but must instead be attributed to the judge who chose to interpret it improperly. | | | | |
<
< |
This is not true either, I think. When Nino Scalia says that one's man lyric is another man's obscenity, he isn't proposing to prohibit censorship, and he isn't proclaiming a regime he wouldn't accept being obliged to live under.
| >
> | Pragmatic and Innate? | | | | |
>
> | There are alternative explanations as to why our system of law seems to be accepted by a great many people, and while each may carry a kernel of truth none explains acceptance as well as myth does. The first argument is that law serves a necessary function. While this would almost certainly be the first answer anyone would give you, its logic seems derived not from an examination of law but more as a repetition of the myth of law. While societies will always need means to ensure social cohesion and prevent violent deviance, that means need not be law. The argument for the necessity of law is always placed against a backdrop of complete chaos, where no social sanctions exist. There are plenty of social institutions between modern law and Mad Max chaos that we could adopt to fulfill the necessary function. Additionally this argument betrays its own mythic roots by assuming that the mere existence of a problem justifies the proposed solution. The idea that law is necessary must be reinforced by its actual efficacy. While myth is eager to demonstrate its efficacy, the historical results of modern law are not so simple. | | | | |
<
< | In each man’s mind his will is sufficient to restrain and guide his actions. But if we are all selfish anarchists, what explains our near fanatical worship of the law and our praise of its institution as an avatar of justice? We worship law for the same reason mankind has worshiped anything in its history, because it is a myth, and a powerful one at that. | >
> | An extension of the necessity argument is that since law holds such a hegemonic position in western history it is viewed as a natural part of human life. This assumption is an obvious creation of myth. Law is an ever changing and not always present phenomenon. Rituals and stories, however, demonstrate a narrative of an eternal law. The law is portrayed as a single institution extending back to the signing of the Constitution, the Norman invasion, or even the Ten Commandments. Court buildings are built to resemble Roman temples more than modern administrative hubs. Law is described as a unified object rather than a set of decisions, and as such it is given longevity beyond its immediate form. | | | | |
<
< |
Maybe, but that's not an idea consequent on the preceding discussion. The rhetorical question that got to you it was a smuggling welder, designed to put two lines of thought together and make them "feel" rather than "be" connected. | | | | |
<
< | Let us take your rhetorical question seriously. It's a question that concerns James Madison in Federalist 51, and he answers it this way: | >
> | Mythic Analysis | | | | |
<
< |
[W]hat is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.
What you believe is "fanatical worship" seems to me, as it does to
Madison, more a matter of sober, disillusioned, reluctant acceptance
arising as a learned conclusion from painful repeated experience. Evidence of the fanaticism you claim to observer would be helpful in understanding why we should abandon Madison's realist proposition for your more romantic representation of what it feels like to be us thinking about the law?
The Oracle at D.C.
Oliver Wendell Holmes was astute when observed that lawyers were prophets, but misunderstood what that role means in making myth. A lawyer’s job is to convey the wisdom of the platonic ideal justice through the reading of the signs. The judge is there to interpret the incomprehensible whispers of the prophets and bring forth the knowledge to the public. If lawyers are prophets, then judges are the high priests of their temples.
It isn't a
"misunderstanding" that he doesn't think what you think: it's the
whole point of the way he thinks that he doesn't think like that.
He doesn't say that lawyers are prophets, he says they predict what
judges will do in fact. And he doesn't say judges are prophets, he
says they are men (indeed, men, so far as he is concerned) who
decide cases.
It is this enthralling ritual that draws people like moths to a flame.
How do we know it is more like moths to flame than like citizens to the fount of justice? This is just argument by extended and decorated metaphor.
The monopolistic access to truth, given to lawyers and moderated by judges who may “properly interpret” the radical babble of the occasional renegade prophet, ensures a safe, sterile, but enthralling opportunity for citizens to witness truth. The temple is an enduring source of authority, it is no coincidence that Machiavelli declared prophets to be some of the best founders of republics.
Yes, it is no coincidence, but that doesn't make the juxtaposition an argument, either.
Humans crave truth, and a myth that declares a unique access to it is quite powerful.
We needed something
more than an assertion that what the law peddles is "truth." I
don't think that's what we think. Certainty? "Closure"?
Predictability? Risk mutualization? A method to govern the people
and the government at once?
If the truth is eternal, and the prophet anointed, then all victories can be attributed to his wisdom while all failures blamed not on the truth, nor on the prophet, but on the failure of the citizens to properly interpret his words.
In extended metaphor mashups, this "if [something] ... then [another metaphor]" is the primary buildng block. Look out for it. It's important because it's the construction that makes mere metaphor juxtaposition "feel" like logic.
The Conquest of the Other
Humanity’s worship of myth is undoubtedly a powerful one,
What?
but the optimist must ask why our reason cannot have, by now, comprehended that myth has failed to align itself with reality.
Because that's not what myth "does," perhaps? You never presented a definition, a reference, a context for "myth," and by now we can feel as readers the difficulty presented because we don't know what you mean by it.
This analysis of course would fail to understand the essential nature of myth. Myth is not a “description of things, but an expression of a willingness to act.” (Sorel, Reflections on Violence) If the myth of law persists, we must ask what we as a society see represented in the myth, what inclinations or desires we see fulfilled by this myth. The punitive, retributive, and condemning nature of law may give us an answer we don’t want to hear. The myth of law pleases our minds by infusing the ideas of justice and equality into our desires for conquest, power, schadenfreude, vengeance, security, and identity. Law takes our pack instincts and justifies them by dividing humanity. Those declared innocent are one with us, deserving our solidarity and protection. The other, the criminal, is a threat to the pack, an agent of evil on whom every imposition or conquest is justified, against who every infliction of pain is necessary in its protection of the pack. This is how we can be selfish anarchists who worship the law. The law is not a creature that applies to us. The law is not a means of ensuring cooperation among citizens. Law is war. It is the collective targeting of positions in society so as to destroy those elements, to purge and to protect. The myth of law is one of the justification of war, and so long as one doesn’t fall within the guilty space, he can worship the law without thinking he is submitting himself to the sword.
Deception of the Resistant
If law is war, what then explains its worship by its victims? Why do marginalized groups often vehemently advocate for the protection of the rule of law, yet suffer the brunt of its legitimized wrath. The answer may come in the hegemonic state the myth of law has achieved. The “others” couch their terms in the language of the myth because myth carries with it vulnerabilities and because punishment waits for those who wander outside the realm of proper discourse.
The myth of law as justice is a powerful one. While it legitimizes the rule of law that legitimization carries with it certain assumptions, namely that law is the arbiter of justice. This assumption is the chink in the myths armor. “Others” are able to highlight instances where justice is not served, and use the law’s own discourse against it. Thus the critique of law seems to the outsider as its worship, much as a peasant’s critique of “evil counselors” might seem as a worship of the monarch. Finally apparent worship of law is strategic, for deviation from the approved discourse is punished. Judges wield the power of contempt of court, not to maintain order in the court but to maintain worship. There are those for who contempt of court is an apt description of their mental state, but for who silence is strategically safer. Critiques of judgments that question not only the legal outcome but the legal process in general are quickly denounced as anti-democratic and agents of chaos. Riots, the ultimate middle finger to law, are quickly clamped down on by police. Rioters are made to know that retribution is not allowed in the war that law is waging. Law carries with it force, and that force is the ultimate insurance of its nominal worship.
The ouline got lost, and I don't know what the preceding 558 words were supposed to do.
I think the best route to improvement is to isolate the sentence, or synthsize the sentence, which states as succinctly as possible the core idea you want to present. An introduction stating the idea can be followed by its development, that is, a fleshing out of the idea, and an effort—direct or indirect—to address the questions or objections your skeptical editorial reading discloses to you between drafts. You can then write a conclusion to the essay, based on the idea developed, that shows the reader how she can take the idea further, on the basis of the implications of your idea the conclusion sets forth for her.
| >
> | It is hard for humanity to separate myth from reality, and law is no exception. While law undoubtedly has a function and a form on its own, it can be difficult to discern whether our view of it is derived from examination or from mythologizing. The question then becomes where else is our study of the law driven by our mythical understanding rather than our analytical one, and what has that done to our shaping of the law. | | |
\ No newline at end of file |
|