The Myth of Law

-- By RyRavenholt - 4 May 2015

Experience of Law

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.

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.

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.

Ritualistic Justice

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.

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.

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.

Mythic Analysis

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.