Legal Theory as Myth Construction

Brian Tamanaha

Last weekend at a conference on the rule of law, I blurted out, in a moment of indiscretion: “the rule of law is a myth!” It would not be surprising to hear this uttered by a radical, but I wrote the book on the rule of law (literally) and I promote it (the ideal, as well as the book) at every opportunity. I eagerly and without compensation give lectures on the rule of law to officials or jurists from developing countries, and indeed to anyone else who is interested. To my great excitement, the book has been translated into Ukrainian, it is currently being translated into Chinese, and I have received a proposal to translate it into Spanish. So how can I call it a “myth”?

Let’s broaden the question, for I believe much of legal theory—what I do for a living—consists of myths and myth construction. Here are a few examples large and small: social contract theories of law (myth); evolutionary theories of law (myth); the Constitution is a contract (myth!); our constitution is democratic (myth—see Sandy Levinson); the notion—often repeated by Habermas and others—that in a democracy the addressees of law (we the people) are also its authors (dangerous myth); natural law (myth, alas).

I could go on, but I have probably already offended many people by suggesting that certain ideas they take seriously are myths. In response, I should add that I don’t see myths as bad necessarily, and indeed I believe they are an essential aspect of our existence. Human history is filled with myths, myths with real life consequences; consider just two prominent legal examples: the lex regia (the legend that the people consensually gave absolute power to the Roman Emperor), and the notion that the common law consists of customs of the people descended from time immemorial, were both believed and acted upon for centuries. In our age of science, many intellectuals committed to truth and knowledge seem to think that we no longer trade in myths (or think that only the people they disagree with trade in myths), but that’s wrong.

To be clear, I should define what I think of as a “myth”: a big story that helps us make sense of or understand what it purports to describe, a story that claims to be true but which is substantially at odds with or departs from the facts. It is either mostly not true, or substantial aspects of it are not fact-based (despite claims otherwise) but a construction with limited or unverified connections to the facts.

As this definition indicates, I believe strongly that there are facts of the matter in the world—we are surrounded by them—so my position is emphatically not that everything is a myth. But theory is not just a catalogue of facts. Theory builds upon facts to offer a description of the world (descriptive component), and often it constructs a vision of how the theorist would like the world to be (prescriptive component). Some theories claim to be purely descriptive, but this is a difficult (though not impossible) stance to maintain.

How the theorist would like the world to be can have an influence on or shape how the theorist sees and describes the world; and, moreover, the theorist’s descriptive and prescriptive views are influenced at the outset and throughout by beliefs (some mythical) inherited from the cultural and intellectual traditions which shape the theorist’s pre-understandings. These two factors can, unbeknownst to the theorist, lead to the building of a myth despite the desire of the theorist to construct a completely true and accurate theory.

I am not suggesting, I should emphasize, that all theories are myths. Descriptive theories that stay close to and make good sense of the facts, and that produce consistently accurate predictions, are not myths. But these tend to be modest or narrow theories (good qualities), while many theories are grand or broad (also good qualities, but more subject to myth making).

None of the above observations are profound or new; in many circles they are commonplace (though please don’t confuse this position with the “noble lie”).

Nonetheless, it is good to be reminded that much of legal theory consists of myth construction, for at least two reasons. First, it suggests that all legal theories should be evaluated in two distinct ways: How true to the facts is the theory? What will follow—will happen in the world—if people accept (come to believe) and act upon the theory? These are hard questions that cannot always be answered, but it is essential to ask them. I promote the rule of law ideal because I believe it is better for people if their societies strive to develop and preserve the rule of law, even as I recognize that no society fully lives up to the factual claims underlying the rule of law ideal (that’s why I see it as a myth).

Second, if theorists recognize that much (though not all) of theory involves myth construction, it might encourage a greater sense of humility about the products of our efforts. I strive to be true to the facts, and I strive to build a vision that will advance the good, but I never forget that it’s a construction, and I am open to the possibility that I am wrong descripitvely or prescriptively. That strikes me as better than laboring with the conviction that the stories I weave are truth and nothing but. Many theorists think of their work this way, of course, although they might be reluctant to describe it as myth construction. However, I have met or read theorists supremely convinced of the deep truth of their positions, and they uniformly leave me worried.

This post, with its confessional aspect, might result in me being taken less seriously as a theorist—why read someone who admits to engaging in myth construction—or in legal theorists generally being taken less seriously (assuming, of course, that we are taken seriously as it is), but that would miss the other point of my post: myth construction and adoption is an important and ineradicable aspect of human existence that helps us make sense the world, and helps us engage in projects to improve the circumstances of our existence. That sounds like silly old fashion idealism, but what else is there in the face of such a screwed up world?
Posted 12:06 PM by Brian Tamanaha [link]