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The Uses of Myth: A Response to Professor Bassett

Published online by Cambridge University Press:  24 April 2015

Susan H. Williams
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Extract

In his essay, Professor Bassett traces the roots of the “myth of the nomad,” a myth which was used to justify the dispossession and destruction of Native Americans by colonial settlers. Bassett's primary focus is on a careful exposition of the sources and uses of the myth. The historical evidence he presents is persuasive and interesting, and his analysis is often thought-provoking.

I find myself, however, in some disagreement with Bassett over the function this type of work serves. While Bassett recognizes that “[w]e are all creators of myths,” he insists that we should “bring to light” the myths in the law and expose their “insidious uses[s].” As Bassett observes, the first-year property course offers numerous opportunities for the unmasking of such myths. Bassett seems to suggest that we view his fascinating essay as one such attempt to “demythologize the law.”

It is not possible, nor would it be desirable, to “demythologize” the law. The law is constructed upon, and often even constituted by, myths. The effort to eliminate those myths would produce legal concepts that were far less human, and probably no more humane. Our task, as both teachers and scholars, should be to recognize and evaluate the myths we use, but not necessarily to abandon them. Bassett's essay offers a fine beginning for this project of understanding.

Type
Colloquium on Law and Religion in the First Year Curriculum A Loyola Law School Colloquium
Information
Journal of Law and Religion , Volume 4 , Issue 1 , 1986 , pp. 153 - 159
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1986

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References

1. Basset, , The Myth of the Nomad in Property Law, 4 J. Law & Relig. 133 at 151 (1987)Google Scholar.

2. Id. at 152.

3. Id. at 151.

4. Cf. Cover, , Foreword: Nomos and Narrative, 97 Harv. L. Rev. 4, 45 (1983)Google Scholar (“No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning.”); White, J.B., When Words Lose Their Meaning 11 (1984)CrossRefGoogle Scholar (“Social and political institutions are … complex sets of understandings, relations, and activities. They are ways of talking that can be learned and understood, and they play their part in constitution a world.”).

5. This definition of myth, while far from uncontroversial among cultural anthropologists, does, I think, represent a starting point with which many would agree. See, e.g., Levi-Strauss, C., Structural Anthropology 202–28 (1967)Google Scholar; Stanner, , The Dreaming, Reader in Comparative Religion, An Anthropological Approach 269–77 (Lessa, W. & Vogt, E. eds. 1965)Google Scholar; cf. Geertz, C., The Interpretation of Cultures 1–13 (1973)Google Scholar (“culture consists of socially established structures of meaning”). Even those who accept this basic definition would, of course, disagree about the method of analysis that should be applied to decipher the cultural meaning of myths. The purposes and materials of legal analysis differ from the purposes and materials of cultural anthropology; thus, the question of method must be addressed independently by legal scholars. The particular method that I have suggested is simply a first approximation of an approach that obviously will require a much more sophisticated exposition.

6. See Bassett, supra note 1, at 135, 150.

7. I assume that the fact that the myth caused great human suffering is not a sufficient reason to abandon it. There is, of course, the obvious point that the same idea may be capable of causing both great evil and great good. Assuming, however, that some ideas carry inevitable harmful consequences, such ideas may, nonetheless, be valuable and worth preserving. The tremendous cost we pay for some of our myths clearly requires that we provide a stronger justification for those myths, but it does not make them necessarily illegitimate. Democracy may also be a myth, and one for which many people have died and killed, but that does not prove that we should abandon it.

8. See, e.g., Bassett, supra note 1, at 133, 144, 149.

9. For example, some northern New England Indians were, in fact, primarily nomadic hunter-gatherers. See Cronon, W., Changes in the Land 37–39 (1983)Google Scholar.

10. As Bassett points out, the descriptive distortion imposed by the myth is nonetheless significant because it indicates how strong the need to believe must have been. In order to overcome the often contradictory experiences of everyday life, the myth of the nomad would have required a particularly strong ideological or material foundation. See Bassett, supra note 1, at 135.

11. See Bassett, supra note 1, at 135, 150.

12. See id. at 134, 150.

13. For a discussion of this relation, see generally Radin, , Property and Personhood, 34 Stan L. Rev. 957 (1982)CrossRefGoogle Scholar.

14. See Bassett, supra note 1, at 139.

15. Bassett argues that the colonizers found it impossible to assert that a people was uncivilized if they had recognized that the people were Christian. This explains for Bassett the English refusal to recognize Irish Catholicism as Christianity and the persistent English characterization of the Irish as pagans. It is, of course, possible that the English classified Christianity with alleged Irish lack of civilization. It is also possible, however, that the English imposed that pagan classification simply in order to be free of the moral scruples that might otherwise restrict them in their dealings with the Irish. The evidence Bassett describes does not resolve this ambiguity. See id. at 138.

Moreover, even if Bassett is right that the English could not reconcile Christian faith with an uncivilized society, the two concepts—Christianity and civilization—may nonetheless be distinct. The inference may run only in one direction: Christianity may imply civilization, but civilization need not imply Christianity. In that case, the myth might still assign very different roles to nomadism and paganism as the determinants of property rights or personhood.

16. Perhaps the relation between civilization and Christianity might be more clearly illuminated by an exploration of English impressions of groups that cut dramatically across these distinctions. For example, Bassett mentions that the English were aware of the Chinese, who were a non-Christian nation, but a highly civilized one in European terms. See Bassett, supra note 1, at 146 (discussing a French work which was translated into English in 1761). Contemporaneous English impressions of China may shed some light on the possibility of including “civilized pagans” in the Elizabethan or colonial cultural categories. If such a category existed, then the “pagan nomad” would be revealed as a combination of two severable sets of characteristics that might have very different implications for the assignment of property rights and the recognition of personhood.

17. See Bassett, supra note 1, at 144 (quoting de Vattell, E., Les Droit des Gens 31–38 (Fenwick, C. trans. 1916)Google Scholar).

18. See id. at 145 (quoting Grotius, H., II De Jure Belli ac Pacis 2.21–5 (1625)Google Scholar).

19. See id. at 145 (quoting, inter alia, Hume, D., Treatise on Human Nature 31 (Selby-Bigge, L.A. ed. 1888)Google Scholar).

20. See id. at 143 (describing several sources). For more modern discussion of such evolutionary theories, see generally Demsetz, , Toward a Theory of Property Rights, The Economics of Property Rights (Furobotn, E. & Pejovich, S. eds. 1974)Google Scholar; Stein, P., Legal Evolution (1980)Google Scholar.

21. See Bassett, supra note 1, at 145 (quoting Grotius).

22. See id. at 144 (quoting de Vattell).

23. See id. at 142 (quoting an anonymous pamphleteer).

24. See id.

25. I have deliberately left ambiguous the method of normative assessment to be applied in this analysis. The choice of a normative theory is, of course, a very large and independent subject. I assume that each scholar will use whatever ethical theory he or she usually uses to assess the law.

When the myth is in some sense a part of “our own” culture, one useful approach may be to search for what John Rawls called “reflective equilibrium.” We begin with, on the one hand, a set of moral intuitions and considered judgments and, on the other hand, a mechanism for generating principles. In Rawls' case the mechanism is the original position; in our analysis it is the cultural understandings implicit in the myth. We then compare the principles, and their consequences, with our moral intuitions, modifying and replacing elements of both sets in response to each other, until we arrive at a “reflective equilibrium.” See Rawls, J., A Theory of Justice 48–51 (1971)Google Scholar.