Balkinization  

Thursday, June 14, 2007

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?

Comments:

Wow, Brian, what a tough point to ponder. I think you might be right, though (keeping in mind that I am not a legal theorist). Utilitarians in moral theory encounter a similar issue; Jeremy Bentham is famous for his theory of "fictions," which are very much the same as what you mean by "myths"-- propositions which are literally false, but which are nevertheless conducive to the production of general utility were we to take them as true, and so that's enough reason to encourage belief in them.

I'm a little perplexed, though-- exactly what empirical claim about the world does the rule of law get wrong? I always took that as a purely prescriptive claim that stood or fell independently of whether actual legal systems managed to procure the rule of law adequately or not. Is there something I'm missing?
 

Legal Theory I think is a bit of a misnomer. As you rightfully point out, legal theories more closely resemble explanation for an active power dynamic in the judicial arena.

You need different theories for understanding different power dynamics.

The predictive value of those theories is totally dependent on the similarities of the power dynamic to be analyzed with the power dynamic the theory was developed for.

does that make any sense?

thus, Ackerman's theories aren't predictive now because we have a battle between Congress and the President over presidential power.

the Supreme Court is about to make some major rulings.

which previous legal theories were developed to explain a similar scenario?

Nixon. And the upshot of that was sweeping reform from Congress and a SCOTUS rebuke to the President.

In this case, however, the Court may not be hostile to Bush.

How would Nixon have turned out if the Court allowed him to hang on to the tapes due to Executive Privilege?

This is the scenario that is before us, but on even grander scale due to the sweeping claims of the administration for unchecked Presidential power.

Is our current court more conservative than it's Burger counter part?
 

But, didn't the "rule of law" prevail today re: Libby's sentencing? Bush-haters around the Internet rejoice -- good thing Fitzgerald was never after Bill Clinton for HIS perjury to the grand jury and obstruction of justice -- just wait until the next Democrat gets in the White House for some serious payback ; )

Can we at least agree IF Libby's conviction is completely overturned on appeal (I'm not referring to any Presidential Pardon for the moment -- although I see that even Obama's campaign attorney, Robert F. Bauer, has urged that Bush should pardon Libby as well), then it would be wrong to have forced Libby to serve jail time? Where's Project Innocence when you need them?!
 

Charles,

libby had a million dollar defense team and a jury trial.

it's ulikely it will be overturned on evidentiary issues.

it's been suggested that Fitzgerald's appointment was somehow an unconstitutional appointment of a principle officer.

this seems weak too.

Fitzgerald was delegated authority sufficient to conduct a criminal investigation of a high ranking official. Scooter got to introduce his exculpatory evidence and the jury said he was obviously guilty.

If he does time, it will be no more unfair than any other convicted felon doing time while awaiting appeal.

Of course, if the Judge finds his appeal to be likely of success he can allow him out pending appeal.

I don't think so.
 

And Kenneth Starr was no less of a bulldog and waster of taxpayer money as Fitzgerald even you have to admit.

Starr just couldn't drum anything up as you would say of Fitzgerald.
 

in fact, it is Starr and not Fitzgerald who is the poster child for a run-away prosecutor.

from land deals in arkansas to kinky sex in the oval office.

millions of dollars wasted while the world laughed at us.

no one's laughing now.
 

Starr "drumed up" more than Fitzgerald. At least there was a three-judge panel authorizing every expansion of Ken's investigation.
 

and how did Fitzgerald expand his investigation beyond who leaked Plame?

we still don't know the facts because scooter obstructed justice.
 

But, didn't the "rule of law" prevail today re: Libby's sentencing? Bush-haters around the Internet rejoice -- good thing Fitzgerald was never after Bill Clinton for HIS perjury to the grand jury and obstruction of justice -- just wait until the next Democrat gets in the White House for some serious payback ; )


so you suggest the Ken Starr failed to bring down clinton where fitzgerald would have.

you also suggest that a Republican minority in Congress will have the juice to get a Dem appointed AG to appoint a special prosecutor out of thin air.

those are some pretty big assumptions.

not quite believable.
 

Garth:

Was Libby convicted of leaking Plame's name? No, so there's an expansion right there. Was leaking Plame's name even a crime? It seems not, since Fitzgerald never prosecuted Richard Armitage. As for Ken Starr, he did everything he could legally do for a sucessful impeachment, but it was up to the Senate to remove Clinton. Who I am comparing Fitzgerald to was Starr's successor, who failed to indict and prosecute Clinton once he left office.

Someday, there will be a Democrat back in the White House (hopefully not 2009) and a Republican majority in one House of Congress at least. Wait til THOSE investigations gear up. I would be issuing DAILY subpoenas to every senior West Winger (for "oversight purposes" of course ; )
 

hardly an expansion.

scooter was convicted of obstructing that very investigation.

that's a stretch.
 

Well, you only asked "how did Fitzgerald expand his investigation beyond who leaked Plame?" Meaning, we know now, Richard Armitage (who, last time I checked, was not prosecuted or sentenced).
 

I only wish that Bill Clinton had gotten 30 months in federal prison for HIS perjury to a grand jury and obstruction of justice (maybe that, and the O.J. trial, is what Brian was referring to re: "myth" of rule of law?).
 

Charles, incredible as it may seem to you, Democratic investigations of the Bush Administration are not mere "payback" for Ken Starr, they are looking into evidence of real and serious abuses that the Republican Congress allowed to flourish unchecked.

If a Democrat is in the White House and Republicans control Congress and there is evidence of real abuse by the President, then by all means, let the investigations begin. But you are "jokingly" implying that you want to get back at this Congress by setting out to hamstring any Democratic President with investigations as a matter of pure partisanship. "Jokes" like that tend to cover a serious intent.
 

Brian,

We can unpack aspects of the rule of law that are not a "myth": the definition, its elements, and so forth (albeit with much disagreement). Taken as such, these are not stories that claim to make factual assertions. But there is a great deal of myth making within rule of law theory. For example, one fundamental aspect of the rule of law is that the law must be "general" (not aimed at a single person), but for much of English history a substantial bulk of the law was particular--dealing with specific individuals. There are other elements (certainty, adherence to law, etc.) said to be characteristic of systems that possess the rule of law, which are dubious as a factual matter.

The rule of law is not a myth when taken as a political ideal, but when we go beyond that to make factual assertions (historical or present) about which countries have the rule of law and why it begins to shade into myth making.

Brian
 

Enlightened Layperson:

I deadly serious after today.
 

Brian Tamanaha @ 2:41 pm: "The rule of law is not a myth when taken as a political ideal, but when we go beyond that to make factual assertions (historical or present) about which countries have the rule of law and why it begins to shade into myth making."

I understand (I think). But it seems to suggest that perhaps the rule of law as a (normative) political ideal is itself vague, perhaps suspect, if we can't use it to judge which legal systems better exhibit it as a characteristic without making empirical mistakes about the very legal systems we point out as examples.

If you wish to answer me by saying, "Go read my book," I'll be happy with that; my institution's law library has it.
 

Perhaps Armitage was not sentenced because Fitzgerald concluded he had not committed a crime.

We know he leaked because he admitted it.

Scooter lied about it.

But, by all means, if Armitage committed a crime he should be prosecuted for it. even if the crime is lying about a non-crime in order to cover up an investigation into a national security leak.
 

The rule of law is not a myth when taken as a political ideal, but when we go beyond that to make factual assertions (historical or present) about which countries have the rule of law and why it begins to shade into myth making.

This sounds less like a myth than an unachieved (or unachievable) ideal.
 

we don't know if scooter leaked too, independently of armitage.

armitage may not have committed a crime.

libby may well have and thus chose to lie.

he was found guilty of lying.

so we don't know if he leaked, but the mere fact that armitage leaked too, doesn't exculpate him.
 

Brian and Mark,

The people who first wrote about the rule of law influentially (Dicey, Hayek, Fuller), saw and described law--and hence the rule of law--in somewhat idealized (read that: mythical, at least in part) terms. Their writings shape our understandings of what the rule of law consists of. So while it indeed is a political ideal, and can be understood as such without being considered a myth, what they meant to describe was the reality that attached to the rule of law, a reality that was never so. Nonetheless, the very belief in the reality of rule of law has brought positive consequences (though not only positive), which is why I support it.

Brian
 

Brian, I'm even more confused about your statement that the constitution is not democratic after reading your statement that rule of law must be "general" (which is of course true).

You don't define democracy, nor show how the constitution doesn't qualify. The document seems to me to embody "people power" in many ways--most obviously in the Tenth Amendment.

"Democracy" has always been an ideological term, prescriptive as much as it is descriptive of any constitution and society.

There's a strong case to be made that in ancient Athens, it replaced an earlier and more descriptive word for the new government the people were experimenting with. That word seems to have been "isonomia", or "equality before the law".

The constitution certainly makes all Americans equal before the law.
 

The constitution certainly makes all Americans equal before the law.

It comes reasonably close to that ideal now, but it certainly didn't at the beginning. It's that descriptive aspect to which I think Prof. Tamanaha objects.
 

"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)."

-You are using an interesting definition of myth in this post. From what I've read of Paul Tillich and theologian Neil Gillman, working, living myth is defined as a construction of reality whose primary purpose is to fashion order from a chaotic world. Its relationship to fact is relatively irrelevant. And it need not be particularly idealistic. It is more important for the myth itself to function properly than for it be particularly idealistic.

With that said, I agree with your point that the rule of law is, in fact, myth. But I do not think your point is as controversial as you suggest as myth's relationship to fact, as I understand it, is not a crucial factor in judging a myth's utility.

Best!
 

Scott: "....myth's relationship to fact, as I understand it, is not a crucial factor in judging a myth's utility."

However, if a myth is perceived as not having a relationship to fact, its utility is substantially diminished.
 

"the Constitution is a contract (myth!)"

But our present acceptance of the Constitution does involve literal consent from office-holders, per Article 6. I think that's the important sense in which the Constitution is a contract. See here and here.
 

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