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- 1. THE MYTH OF MODERN LAW LADY JUSTICE JUSTICIA, THE ROMAN GODDESS OF JUSTICE.
- GENERAL DEFINITION: A society's shared stories, usually involving Gods and heroes, that explain the nature of the universe, the relation of society and the individual to it, origins, etc. Mythic narratives embody and express a society's rituals, institutions, and values.
- ANTHROPOLOGICAL DEFINITION: Stories told and realities lived.
- 3. SIR JAMES FRAZER 1854-1941
- A Scottish ethnologist.
- The Golden Bough (1890-1915): compares the myths, magical practices, and religions of the worlds cultures throughout history.
- Frazer developed the social evolutionary model of:
- MAGIC > RELIGION > SCIENCE
- He asserted Australian Aborigines were the most primitive of all because they practiced only, what he defined their spirituality as, magic.
- 4. THE EUROPEAN ENLIGHTENMENT MOVEMENTS AND NATURAL RELIGION
- DEISM: A pure natural religion.
- A Creator made the world, but leaves it to operate according to natural laws, a parallel set of moral laws to guide human conduct, and the promise of an afterlife that rewards good and punishes evil.
- Liberal European Enlightenment thinkers asserted this was the religion of the very first humans.
- The best hope for humanity is that it be revived and practiced universally as a brotherhood throughout the globe.
- Deism was a force in the formation of naturalistic and scientific viewpoints of the Founding Fathers of the US.
- The Freemasons emblematic triad of brotherly love, relief, and truth, and their ideals of charity, tolerance, fidelity, and uprightness corresponded with liberal European Enlightenment thought.
- French Enlightenment philosopher, Voltaire, was a Freemason
- The first encyclopedia was written and compiled by other important French Enlightenment philosophers, including Freemasons:
- US Founding Fathers who were Freemasons:
- George Washington
- Thomas Jefferson
- Benjamin Franklin
- Paul Revere
- Marquis de Lafayette
- 6. LIBERAL GRAND NARRATIVES OF WESTERN MODERNITY
- Tell stories about how RATIONAL societies will progress through:
- The social contract
- Human reason
- Positivistic science and technology
- Secular social institutions
- Modern law is elemental to the liberal grand narratives of Western modernity.
- Myths and superstitions are of Europes irrational, pre-modern past and not part of Western modernity.
- Western religion is a personal, private matter that is to be kept separate from social structural processes of the public sphere.
- Non-Western myths, superstitions, and spirituality are primitive.
- Freud: The individuals ego mediates the id, superego, and external world to control the ids primitive instincts and primal desires so she or he can be a part of civilized modern society.
- The Liberal Grand Narratives of Western modernity:
- Assert a universal truth applicable to all individuals and societies.
- Make claims to an origin that Western, rational modern people historically developed from primitive to civilized.
- Identify as rationally Occidental in contrast to irrational Others.
- 7. LIBERAL EUROPEAN ENLIGHTENMENT AS THE ANTI-MARVELOUS
- Both Friedrich Nietzsche and Max Weber characterized Western Modernity as the death of God, and an end to the enchanted and mystical qualities of the universe.
- Modern intellectual elites are socialized to evaluate the marvelous qualities of human existence and creativity, and the natural world with studied indifference.
- 8. CONTRADICTIONS OF WESTERN MODERNITY
- Modernity asserts universal truth and thus is totalizing, whileat the same timeit espouses individualism in which each person is an autonomous agent.
- It claims to be the venue for freedom, equality, justice, and progress beneficial to all, yet from its inception during the European Age of Imperialism, its identity has been predicated on gender biased, heteronormative patriarchy, and in contrast to and exclusion of constructs of the primitive other.
- MARSHAL SAHLINS: Europeans are one of the only cultures that construct its origin as savage and backwards. Others view theirs as coming from Gods.
- FREUD: The rational subject denies and represses primitive instincts and primal desires, relegating them to the unconscious where they surreptitiously impact a persons thoughts and behaviors.
- HORKHEIMER AND ADORNO: Expand upon Freuds model to critically analyze how rational modernity denies and represses the Other of reason namely, myth and nature. However, this only serves to draw out new and more destructive mythical forces. In the attempt to master self and nature through control and objectification the rational subject conceptually destroys what is natural, both internally and in the exterior social world. The modern subject is now captive to self-created forces beyond their control, and the globe is at the brink of self-destruction. ( Dialectics of Enlightenment , 1979.)
- 9. MYTH IS ALREADY ENLIGHTENMENT AND ENLIGHTENMENT REVERTS TO MYTH
- Emerging from the European Enlightenment movements, Western modernity is grounded in the teleological narrative formexposition, complications, climax, resolution (origin, foundations, and trajectories of progress).
- Thus, Western modernity eschews myth as pre-modern, primitive, and irrational, YET its entire premise as a universal Grand Narrative is based in the logic of myth.
- Modernity mythologizes its texts, such as the USs Declaration of Independence , constitutions of Western liberal nation-states, the Universal Declaration of Human Rights , etc.; the scientific works of Darwin, Freud, Einstein, etc.; and the modern literature of James Joyce, F. Scott Fitzgerald, Carl Sandburg, etc.
- The conundrum: how this presence of myth can be reconciled with its denial in modernity. The answer is that the denial is the myth. (Peter Fitzpatrick, The Mythology of Modern Law , 1992)
- Modern law is part and parcel of the liberal Grand Narratives of modernity, and thus is based in the logic of myth and in mythologizing its legal texts.
- Modern law emerged during the European Age of Imperialism and is a creature of colonialism.
- Modern law bases its identity in myths of the liberal nation-state and ideologies of nationalism, the social contract, individualism, and the rationality of science and secular social structural processes.
- In its efforts to avoid myth, modern law denies certain myth-ridden others. However, this negation is a narrative in itself that serves to illuminate the myth of modern law.
- Myth has constituted a heteronormative, male legal ideology that has created and empowered gender based structures.
- Modern laws motto of blind justice is a myth of objective impartiality as the law is steeped in racial, ethnic, gender, sexual orientation, class, religious, national origin, challenged, and age biases. (Fitzpatrick)
- 11. IN MODERN LAWS REPRESSION AND DENIAL OF ITS MYTHIC CHARACTERISTICS, MONSTERS FROM THE PAST-- --RE-EMERGE IN DIFFERENT FORMS IN THE PRESENT
- 12. AS SALLY ENGLE MERRY BROUGHT OUT IN HER INTRODUCTION TO COLONIZING HAWAII , COLONIZED PEOPLES USED THE IMPOSED MODERN, WESTERN LEGAL SYSTEM FOR RESISTANCE , SUCH AS IN ASSERTING THEIR RIGHTS. IN AUSTRALIA, ABORIGINES TURNED TO MODERN WESTERN LAW TO ESTABLISH THEIR RIGHTS TO ANCESTRAL LANDS. LEGAL INCOMMENSURABILITY OCCURRED WHEN THEY COULD NOT PRODUCE DOCUMENTS, BUT INSTEAD TESTIFIED THAT THE LAND WAS THEIRS BECAUSEFOR EXAMPLE---THE SPIRIT OF THEIR CLANS EUCALYPTUS TREE TOLD THEIR ANCESTOR IT WAS, AND THIS STORY HAS BEEN PASSED DOWN ORALLY FOR MANY GENERATIONS. COURT PROCEEDINGS WOULD THEN BREAK DOWN. AN EXAMPLE OF A LEGAL SYSTEM IN DENIAL OF ITS OWN MYTHIC FOUNDATION MARGINALIZING WHAT IT JUDGESTO BE THE MYTH-RIDDEN OTHER.
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