The Myth of Law

-- By RyRavenholt - 13 Mar 2015

Worship of the Irrelevant

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.”

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.

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.

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.

Never is a law violating the first amendment championed by those who want their own views silenced.

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.

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.

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:

[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.