Melbourne Law School
Can mythology be a form of critical theory in the service of right? From the standpoint of an Enlightenment tradition, the answer is no. In this tradition, mythology is characterised by irrationality, and works to mystify reality, whilst critical theory is set against the irrational, its entire force directed at demystifying reality. In a post-Enlightenment tradition, the answer is yes and no. “Yes” to the extent that reason, including critical reason, may take mythological form – indeed, there is identity as much as non-identity between the two forms, a mimetic relationship in which the rational cannot be freed of the mythological any more than myth can stand outside reason. But “no” to the extent that the work of critical theory is still essentially the same. Whether in the form of rational myth or mythological reason, critical theory in this tradition must remain in the service of right in the sense of “the true”, and thus remains an enlightenment project. In contrast, my aim in this paper is to put forward a model of critical theory that is sympathetic with mythology, not only in its form, but also in the work that it does, which is not in the service of the true but of the good. That model is Peter Fitzpatrick’s seminal work of jurisprudence, The Mythology of Modern Law (1992). After addressing how Fitzpatrick’s Mythology is in the form of a negative mythology, the paper elaborates the critical work that such mythological critical theory does. In the case of Mythology, that work involves creating the conditions for a mythological legal pluralism, through the decolonisation of law.
Shane Chalmers is a McKenzie Postdoctoral Fellow at Melbourne Law School. He researches and writes on law, imperialism and social justice using various combinations of critical theory, cultural studies, history, and philosophy. He is currently working on a book that retells a critical history of the colonisation of south-eastern Australia in the mid-nineteenth century, through the analysis of a constellation of colonial artefacts. Before that, Shane completed a PhD at the Australian National University, which culminated in the book, Liberia and the Dialectic of Law: Critical Theory, Pluralism, and the Rule of Law (Routledge, 2018), bringing Theodor Adorno’s dialectical philosophy to bear on the making and re-making of Liberia as a freedom project. He is also editor (with Sundhya Pahuja) of a forthcoming Routledge Handbook of International Law and the Humanities.