On Colonial Universality and other Legal Prerogatives: Reflections on Peter Fitzpatrick’s The Mythology of Modern Law

by | 28 May 2020

Following the death of Peter Fitzpatrick this month, we are reposting this series on The Mythology of Modern Law (first published on CLT on 3 August 2018) to mark the 25th anniversary of the book.

2017 marked the 25th anniversary of Peter Fitzpatrick’s The Mythology of Modern Law. An eloquent and incisive critique of Occidental law’s pretensions to secular origins, Fitzpatrick’s text remains of prime significance to scholars engaged with the constitutive forces of race, racism, and colonialism in the structure and political, philosophical and psychoanalytic imaginaries of modern law. The significance of the book cannot be understated; simply put, it laid the groundwork for the development of studies in law and colonialism and elevated race — perhaps one of the ultimate (and sustaining) myths of modernity — to an object of serious theoretical inquiry, an all too rare move in the field of British critical legal theory.

Central to the book’s overall endeavour was a theorisation of modern law’s relationship to the secular and its theological tendencies, insights that remained opaque if not entirely hidden from the view of major scholars of jurisprudence such as Hart. Drawing inspiration from a wide and eclectic range of intellectual sources and scholarly debates, Fitzpatrick argues that modern law, which sees itself as secular and immune from pre-modern referrals to transcendent power, in fact raises the figure of the sovereign to a transcendental level in its claim to universality. And this universality is a western, Occidental one, always defined in relation to a savage other. This savage other remains suppressed within modern law, a constitutive exclusion central to the (in)operativeness of law itself. The denial of myth is a Western myth in of itself, since the exaltation of law as an object with origins, the constant and feverish search for origins, is another symptom of myth making. It is not difficult to see how relevant this text remains to a wide range of contemporary geo-political problems and our attempts to understand the ways in which state power operates to exclude, punish and sometimes kill (figuratively, literally and symbolically) its ‘savage’ other; from rampant Islamophobia in the UK and elsewhere, to the racial violence embraced by European nation states in their treatment of refugees, to name but a couple of instances.

To commemorate the anniversary of the book’s publication, Sara Ramshaw (University of Victoria, Canada) and Brenna Bhandar (SOAS) brought together several scholars to reflect on this landmark text and Mythology’s influence on their own research and continued significance in relation to critical legal theory and post-colonial legal studies more generally.

This Roundtable discussion as between Abdul Paliwala (Warwick School of Law), Patricia Tuitt (Independent Legal Scholar, London), Mark Harris (University of British Columbia, Canada), Tara Mulqueen (Warwick School of Law), Pablo Ghetti (Brazilian Career Diplomat) – with Brenna Bhandar providing introductory remarks and Peter Fitzpatrick (Kent Law School) concluding and reflecting on the talks – was held at the 2017 Critical Legal Conference (CLC) at Warwick School of Law last September. The session drew in a wide and engaged audience, and sparked convivial, critical discussions that are too seldom enjoyed in today’s academic climate; a testament to the book, its author, and the interlocutors published here in this forum.

Critical Legal Thinking (CLT) has kindly agreed to share abridged versions of the papers given at the Roundtable and also for Peter Fitzpatrick to have the opportunity to respond more fully to these contributions. Tara Mulqueen’s paper has since been published in the Australian Feminist Law Journal (see https://www.tandfonline.com/doi/abs/10.1080/13200968.2017.1413704) and Fitzpatrick will respond directly to that version.

Brenna Bhandar & Sara Ramshaw

Pablo Ghetti, "Reflections on Corruption"

This is neither an original paper, nor a review of Peter Fitzpatrick’s Mythology of Modern Law. I would have liked to write a paper that does justice to Fitzpatrick not only in reviewing key ideas the Mythology brings to the fore, but also in excavating its roots, radicalizing its aims and intensifying its movements. So, I propose a programme of writing, a paper to come, in the form of these reflections and perhaps an essay as a hall of mirrors or a mosaic of mirrors. I also promise that the reflections will one day show that the current discourse on corruption, on the one hand, shows the continuing operation of the negative constitution of modernity, through a typical operation, similar to the discourse on savagery. On the other hand, a reflection to come will demonstrate that certain “corrupt” societies are in fact more fully and comprehensively modern than those supposedly pristine.

The Mythology is highly reflective, for it applies to western law the same hierarchizing strategies of modern colonial narratives. It is a sort of self-anthropology or self-ethnography. At the preface we can note that the book addresses Europe and North America, even though it contains ethnographic insights, and Levy-Strauss is only one key reference, that stem from the global South. And that realization triggers a desire to imagine the reverse operation of a rationality of indigenous law, or the Guayaquil’s reading of Peter Fitzpatrick’s Mythology (Guayquil’s being the group who inspired Pierre Clastre’s Society against the State), or the Araweté’s interpretation of modernity (the Araweté’s inspired Eduardo Viveiro de Castro’s Cannibal Metaphysics). Fitzpatrick performs “an internal decolonization” (p. 13) by adroitly “exoticizing the domestic”. I would attempt to think mythology from the perspective of those who are less enticed by the spell of modernity, despite belonging to it, and for whom at least certain moves of that mythology remain hollow, incomplete or originally corrupt. With this reflective programme I would seek to think the possibilities and impossibilities of a reversed universalization, apt to produce a paradox, what Derrida called the “paradox of paradox” (“The Other Heading”), and thus a general exposure of colonization. This paradoxicality is thinkable through deconstruction’s “polemic” strategy pushed to its own limits – that is addressing social formations through the strategy of inverting binary dichotomies with a view to a subtle move towards enjoying more equally our shared sense of order and orientation. 

The first paradox is of course the modern/colonial paradox: I am particular, I cherish and reflect the ways of my home, my class, my village, and my nation and yet I proclaim universal values. The second and more troubling is the subaltern who dares to claim universality and get out of the mutually reinforcing boxes of savagery and cultural particularity. The universal claim of the colonized brings about the paradox of paradox and the fragile event of a more equal enjoyment of our shared forces and affects. This task, however, is complex for a number of reasons, all of which pertain to a complex entanglement of myth and its corrupted forms:

  • The Myth of Capital
  • The Myth of Representation
  • The Counter-Myth.

(A) According to Fitzpatrick, the modern colonial myth does not pertain to the remainder of the sacred, the resilience of rituals or the persistence of mythical imagery. It is rather the negation of myth and the mobilization of a lack, the absence of a superior referent which calls upon the ordering and naming subject. And this “subject”, to put in the language of Habermas, has an unfinished task ahead. “Low” reality, attributed to “others” and to “nature” alike, has to be conquered. The “Subject” emerges mediated by grand “ideas”, such as Humanity, State, Nation etc. The perfection of modern myth is making it more pervasive and all-encompassing.

The complication here is that this mythic modernity in its so called “primitive accumulation of capital” achieves something: the spread of an actual-concrete universal form, the commodity-form, apt to colonize almost thoroughly land, labour and money. Make no mistake: these are indeed, as Marx saw it, mystifications, or fictions in the language of Karl Polanyi. Here the subject is set apart from the production process and, later, consumed in the consumption process. The tautological movement of modern capital derives its impulse from an extreme subjective form, sometimes called possessive individualism (Macpherson) or a “mode of production of subjectivity” (Deleuze/Guattari) that tends to “corrupt” itself. The “subject”, so goes the liberal myth, slowly but steadily extracts itself from community reference points and pursues his or her happiness in her own way. This drive, in turn, feeds into the economic autonomization and reification that will naturalize the human world. The subject will steadily lose its ethical-religious grounds and thus modern protestant asceticism, which had brought catholic monastic life into the secular world, turns out to be as Weber called it a “vanishing mediator”, liberating the subject to, as we shall see later, less altruistic goals.

My question here is how to exoticize the unfamiliar, the distant. Perhaps we would have to demonstrate that unfamiliar, abstract systems are, despite the complexity of modern society, ultimately grounded on the familiarly “primitive” sociability forms. We would have to show, perhaps as Derrida in his seminal, the “Other Heading”, “L’Autre Cap”, that capitalism is indeed dependent on capital, on the polarity of a centre, and thus to a mechanism of social orientation that turns on hierarchical binary distinctions: male/female, white/black, civilized/primitive, friend/enemy, and so forth. “Capitalism” does not erase all hierarchies, and rather mobilizes them in a system of exploitation and alienation.

Exposing the contingency of these binary distinctions and the relations of power ingrained in modern institutions is a way forward. And yet we cannot neglect the rise of roguish or corrupted forms of subjectivity. It is not only the asceticism that brought about the impulse of capitalism but what the ancients would call “vice”. At the inception of modern economic theories, of laissez-faire itself, we find Mandeville’s elevation of luxury and selfishness as elements that benefit the social order. For Hayek, Mandeville is the father of the so-called “spontaneous orders” that populate the neoliberal utopia. In Mandeville we find both the drive of the unbound subject and the groundwork for a consumerist society.  Here the contours of global capitalism are brought to the fore as uniting selfish vice and ascetic virtue, as well as the order of “progressive” subjectivity and the unfinished progress of its abstractly ordered systems. As Schmitt’s nomos, but in ways foreign to Schmitt, capital provides the unity of order and progress, where progress occupies the place of what Schmitt called orientation.

Modern paradoxes abound here, but is it worth exposing them? What if they thrive on their own exposure? It is certainly not an exposure as myth – modern myth is its negation and its double at the same time – but exposure as dynamism, contradiction, geniality, complex of opposites, and in a way the very ground of authority, the mystical ground of authority that inspires belief and awe. And yet this “structure” seems rather oblique or whitened or corrupted. Modern “myth” avows myth’s denegation and, as in Derrida’s “White Mythology”, corrupts myth so that “it” can thrive in its splendour. The wealth, the power, the splendour can only be created out of a dive into one’s poverty, fragility and vice. No matter how we call it: white mythology, modern myth, corrupted myth, the negation of myth, rationality, what remains is that modernity conjures up mythic categories that promote an actual worldwide system of production of outcasts and exploitation of labour, be it physical or intellectual, living or dead, of the poor, the fragile and the roguish. 

(B) The exploitative splendour of capital leads me to another dimension of modern myth, and that is the myth of political representation. So far, this picture has been rather deterritorialized, and the movement of the subject-in-capital seemed autonomous and protean in a direct relationship with the rise of the commodity form, the radical abstract-ization of collective experiences and the global spread of the old market institution. Modern agency hides itself in clothing other than those of the modern subject. The polity will be able to forge the conditions for the accumulation of capital and for its own self-positing subsistence. The baroque sovereign, origin of the modern idea of representation, needs to be called to the fore.

The modern principle of representation does not equate to the postulation of democracy, even though the dominant political form today, and not only in the West, is representative democracy – which could also be named sovereign democracy. As Louis Marin taught us the baroque monarch’s transcendent visibility inspired belief and awe, and “represented” an idea larger than himself (transitive meaning), be it God, the Nation or the People, relying both on his dignity, his worthiness of title and on force (which includes the “force” of a title – intransitive sense of representation: “represent means intensifying, insisting and redoubling a presence”).  The absolute sovereign force amidst other absolute forces enters a restless struggle whose resolution is invariably a coup that annihilates opponents and establishes a “capital” that brings together, in a territory and for a people, the unity of order and orientation. As Marin also noted, later in his writings, the secret force of the sovereign is equally important: instilling fear, discipline, and also frivolity, playing and gaming, as if merging itself with the imperatives of the social structure.

Something happens though when a civil society and popular movements opposed to the sovereign are brought to the equation. In metropolitan centres, private and common interests unwilling to bow to the sovereign’s accumulation build a social-political network in which narratives, arguments and different social forces are brought together in what has conventionally been called the public sphere. In the colonies, various movements of resistance against political centralization and exploitation of indigenous resources have led to coalitions that steadily reclaimed markers of their identity and autonomous mechanisms for development. Populism, despite its contradictions and alleged class reconciliation, has been a key marker of that will to non-domination. In both cases, the construction of a national identity is set against the arbitrariness of a central authority, despite the different ways in which the apparatus of the state is classified either as a problem or as a solution (and despite remoter referents for nationhood often mobilized to reinvent the modern nation). Two forms of coups follow against nascent democracy: on the one hand, the people sap the authority of the former metropolitan sovereign, and that allows room for a more diffuse reign of “capital” (statist and private), and on the other, the state stages a coup through which the people is integrated into state hierarchy as units within a popular sovereign body that represses them at worst and provides for them at best.

Regardless of this primal modern coup, the democratic principle insidiously integrates postulations incompatible with sovereign hierarchy and productive exploitation. With that we come to the crisis of representation that is characteristic of modern democracy. Clearly, the corrupting, vicious aspect of capital and modern subjectivity has a bearing on this process, as much as the sense of equality that emerged from the struggles against authority and the bond that arose in the mobilization and awareness-raising of those whose labour had been exploited. Here I do not espouse Laclau’s vision of the inevitability of representation. Laclau claimed that resistance to representation implied a desire of “presence”, pure presentation, and mistook as representation the metonymic grammar of politics in which taking the part for the whole is the game. At the same time, I hold reservations about the idea that the place of power is empty in democracy – waiting to be contingently and provisionally filled by political articulations and interpretations of generalizable signifiers, or “empty signifiers”. I would rather argue that the principle of representation in its infinite crisis is part and parcel of the nomos of capital – and thus neither mere accessory superstructure nor purely independent of social relations of power and production. The modern democratic postulation, on the contrary, despite its instrumentalization, names a desire for a polity that is foreign to the principle of representation, and, differing from its ancient counterpart, touched by an equal sharing of the creative encounters of our shared forces and affects.

What we witness today with the rise of social media and various new social and communication technologies is another chapter in the sapping of the sovereign representative, and yet not necessarily its end or its final demise. We can always imagine new coups that will tame the participatory force of people and the sensitivity to each other’s forces of creation that could likewise increase if properly nurtured and catered for. In the peripheries this is particularly clear: that is where the mythic representation never really worked on its own, or where this myth is profoundly and explicitly associated with symbolic, police, disciplinary and media violence in a hyper-cynical regression for whom progress is but an empty mirage. In those circumstances, discourses of hope devoid of engagements in concrete struggles are ancillary to the most hierarchical and exploitative social formations. And it is evident everywhere that the state’s potential for control has increased rather than decreased with the rise of current technological tools.

But the operative devices for the continuation of the nomos are not only “technological”. Perhaps the most pervasive today is a narrative: the current discourse on corruption. Despite being integral to capital accumulation, corruption has been elevated to the level of the key scourge of modern politics, particularly in the developing world. National discourses scapegoat corrupt politicians for society’s own common and unavoidable corruption. While the international discourse, in the name of decency, governance and transparency, relegates the corrupt state to the purview of a plethora of intergovernmental and non-governmental organizations, who will ask nothing less than compliance with the way of doing business in the centre – no less corrupt, but perhaps more sophisticated.

Our attempt should not be to salvage representation in the hope that a people will speak in one voice against capital. Disowning modern representation does not mean the absence of activism, participation and agency. And Fitzpatrick’s avowed aim to elaborate a counter-myth (preface) in a way “authorizes” his readers to pursue novel mythic counter moves. Is there a chance for a reversed universalization, a general decolonization and the paradox of paradox? Is a counter-myth equivalent to counter-hegemony? Is counter-myth modern? If modern myth is a corrupt form of myth, what to say of the counter myth? Is it integral, pure, original myth? Or is it a corruption of corrupted myth and thus a revolutionary task? Is it a revolutionary epistemological task, like the epistemic break of Bachelard or a novel scientific paradigm for the analysis of myth?

(C) I was partly drawn to these “reflections” by Sorel’s Reflections on Violence, who gave myth a particularly relevant role in the proletariat movement. He defined myth as “idealized vision that motivates action” and saw the “revolutionary general strike” as myth. What I would like to retain is the determination to action and the underlying antagonism. Yet this idealized vision is too close to representation and also unsurprisingly close to some features of fascism – and with the current fascism of capital. It suffices to say that Sorel thought that the anarcho-unionist movement had some family resemblance with the “individualist” impetus, the “morality of the lords” and the creative energy of the North-American conquest of the Old West.  Gramsci, in turn, identified in Machiavelli’s Prince and in the modern revolutionary Party, the princely agency, of mythic stature, that could provide the subjective elements of revolution. Here, as opposed to Sorel, the mythic action of the modern Prince is much more nuanced and takes into account an affirmative element of the proletariat’s cultural and ideological battles. It is not only oppositional and destructive, but also affirmative and responsive. This mythic dimension of revolution can be easily found in Marx’s own writing, as for instance in his 18th Brumaire, in the “progressive” form characteristic of modernity: “The social revolution of the nineteenth century cannot take its poetry from the past but only from the future.” Various structuralist Marxists have sought to identify in class struggle a type of “effect” of the contradictions of the social relations as a whole. But like Lacoue-Labarthe I see rather an extraordinary poetic power in the Marxist corpus (see his translation of Heidegger’s “Die Armut” – “La pauvreté”) in imagining concrete social struggles and particular instantiations of exploitation as defining “nodal points” of the mode of production and the strategic opportunity for effecting real change to the social order (borrowing “nodal points” from Poulantzas, the most accomplished political structuralist).

In any event, the pursuit of a concrete social agent capable of reincarnating the Prince, the third-state, the proletariat, the anarcho-unionists, the Revolutionary Party, or a coalition of outcasts, as in Marcuse, have not waned in more recent years. We have had Negri’s depiction of the multitude, with its extremely optimistic vision of the possibilities of debunking Empire as a decentred “network” that could suffer a fatal blow regardless of the density or the weight of the link affected. Hardt and Negri’s merit is to have been connected to concrete experiences of struggle, be it in the case of the autonomist movement in Italy, be it later in the anti-globalization movement, especially manifested in G-8 meetings in the 90’s and 2000’s.

In other instances, an array of public intellectuals of the global south have supported reclaiming and democratizing the state. In the past 15 years, a wave of left-wing governments in Latin America have inspired or been inspired by that theoretical trend – that goes back to the 80’s and a rethinking of the left contemporary of the demise of the Soviet bloc. The latest emancipatory political impetus was associated with an inversion of priorities of local and national authorities – away from debt servicing and into distributive policies, some of which with the blessing of the financial institutions of the global capital order. Within that wave, there have been cases more closely related to the populist tradition, with its anchorage in political representation and in natural resources and state monopolies of hydro-carbonates, and also cases in which a plural intensification of democracy, a democratic revolution has been conceived even though never fully put in practice. With various degrees of success and various degrees of reconciliation with capital, these experiences relied on models of participatory democracy that have attempted to overcome the state-civil society divide and to provide alternatives to the classical institutions of representative democracy. The reasons for the more recent failures and reversal of those processes should be sought, on the one hand, in its internal betrayals, including overconfidence in the neutrality of the state apparatus and in the powers of the state itself (through an often misguided and “neutral” version of republicanism), and, on the other, on the conservative resistance that these policies have generated due to their success in lifting people out of poverty and providing them with a higher, albeit limited, level of access to public services.

I would like to shed light on what I called above the neutrality of the state apparatus and along with it the supposed neutrality of the judiciary. From a certain republican and Weberian take that spread to Latin America’s political parties from its social democratic counterparts in Europe, there is a view that the state, marked by a relatively autonomous bureaucracy, is a kind of ship that can be steered by whoever is placed in command after fair and regular elections. Gramsci himself criticised this reductive approach that minimizes class, capital and ingrained ideological prejudices. And yet this is only the more superficial problem. 

The underlying question concerns the left-wing discourse becoming more political-ethical-juridical rather than political-economic-epistemic – contrary to previous incarnations of the modern prince.  Despite “reclaiming the state” (to use the title of Hillary Wainwright’s hopeful book – which starts with the ascension of Lula in Brazil), a number of left-wing movements in Latin America failed to present real, comprehensive and credible alternatives, affirmative and antagonistic, to the order and orientation of capital. This is no claim for an anti-capitalist politics, but a claim for “disputing” capital itself (as we will see later). More on the level of theory than of policies, and to use the distinction of Chantal Mouffe against her purposes, left-wing discourse became meta-political and meta-democratic rather than centred on a substantive politics of emancipation. Despite contemplating various possibilities of democratic participation and democratization of the state, left wing theory missed the point that such efforts have to be complemented by relevant exposures and negotiations of the laws and dividing lines of sociability, access to goods and services, and promotion of economic, cultural and natural democracies – and of course, in its external dimension, promotion of free republics, as much as possible free from domination. The lack of a general theory of emancipatory politics (or a theory of emancipation, rather the collection of “emancipations” – to use Laclau’s term) or a theoretical practice of emancipation contributed to a reductionist “politics of the immediate” – that notwithstanding its important palliative social policies did little to challenge the deep seated structures of capital. The lack of such an alternative, this corruption of the myth of the modern prince led to the capitulation of the left to the pliable universalism of human rights and to judicial idealism. The state was “reclaimed” for the sake of human rights. And thus state sovereignty was reclaimed for the sake of subjective sovereignty and a concept of human dignity wholly compatible with the nomos. Evidently, in various political instantiations the politics of rights can have emancipatory effects when referring to a claim that exceeds the state-form and rights-form themselves. But this possibility is hindered by overflowing and empowering the judiciary with demands that it could not adequately address.

The movement of thought can be traced from substantive transformative claims, hollowed out by social fragmentation and functional differentiation and specialization, to democratic proceduralism (be it deliberative or participatory – regardless of the merits of the latter) and then back to substantive ethical claims that recovered the place of the particular-universal. Let me also reiterate the obvious point that those claims albeit “counter-mythical” also help shaping the modern myth in providing a credible instrument for progress. The link between socialism and democracy was formulated by a party intellectual for the first time by Enrico Berlinguer, PCI, in 1977, at the 50th anniversary of the Russian Revolution: “democracy today is not only the territory where the class adversary is forced to recede, but also a historically universal value on which an original socialist society is to be built”. This becomes the cornerstone of Carlos Nelson Coutinho’s seminal article “Democracy as Universal Value” in 1979 (the same year of the creation of the Workers Party in Brazil – despite Coutinho’s membership of the Communist Party at the time, he would join the PT a few years later only to leave in 2004). He was a nuanced Marxist intellectual, perhaps our best, in the tradition of Gramsci and Lukacs, but his influence derived from a non-philosophical expression: value was neither theorised as such nor referred in any way to Marx’s theory of value. It was assumed that “some forms and structures” of bourgeois democracy would be applicable to socialism, for which the authorities of Luxembourg, Lenin and the early Marx himself were brought to the fore. Despite having relevant arguments also based on Brazil’s struggle against its elite “Prussian way”, with democracy as an overdue alternative, the key idea that remained influential and proved dominant on the left was that democracy as such was an inescapable value. From the value of democracy to the value of human rights – brought together by their ethical-sovereign dignified or decent core – was a short distance, and in a way the coincidence of socialist values with liberal values (nothing here of course diminishes the relevance of diverse social movements in their concrete struggles that have been brought together by this discourse, but it does limit somewhat their scope). If democracy in a way can be seen as corruption of the myth of representation, it can also be seen as corruption of the counter-myth of the proletariat. 

A further complication stems from the legal mediation of the moralization of politics, in so far as the juridical itself becomes acutely marked by ethical injunctions. In various post-dictatorial Latin American settings, the new democratic instruments seemed to offer ample ground to challenge formalistic traditions and the characteristic reluctance of legal officers to engage with social problems. Critique grounded in the ideological role of law and its class belonging waned before cynical and idealistic moves that sought to reaffirm democracy through law – as if democracy were law’s unfinished task – an antidote to law’s originary corruption. It is thus symptomatic that one of the most radical proponents of the “alternative law movement” in the 90’s in Brazil, judge Amilton Bueno de Carvalho, proposed “natural law in the making”, as a historical ethical ground independent from positive law. But also various left-leaning jurists, like Clemerson Clève from Paraná, realized that it would be unnecessary to resort to natural law, for positive law, and the Constitution, contained all the ethical ingredients for judicial activism and an extensive and creative method of interpretation.

One of Clève’s students proposed an idea particularly telling, and that is judge Sergio Moro’s Judicial Review as Democracy (Jurisdição Constitucional como Democracia). According to the argument, one key justification for judicial review of legislation is enhancing democracy’s very institution, like when legislating on the electoral system. This derives from Habermas’s procedural and minimalist take on constitutional “jurisdiction”, but turning it upside down. For Habermas, judicial review should be strictly limited to provisions threatening the possibility of exercising civil rights (in fact, a cautious reading of Habermas would warrant the incompatibility between democracy and judicial review, which is allowed into his system for more practical and historical than for substantive reasons). In Moro’s work, on the contrary, it becomes a new and powerful justification for existing judicial review mechanisms: “judicial activism can be justified through the democratic ideal”. Ideal here is strictly unrelated to “private interests” (p.240), whereas actual democratic practices he treats with suspicion: “bargaining between private interests foreign to the republican ideal” call for a “profound investigation on the history of the legislative act, with a view to examine the spurious motivations that influenced its inception”. Yet, what it reveals, is the truth contained in its title: democracy reduced to Constitutional Jurisdiction, for it will be up to judicial authorities to determine what is and what is not a valid motivation. This rationale is equally furthered by the international trend to use a balancing exercise for solving intractable oppositions of juridical principles, which bear a family resemblance with the increasingly influential “pragmatic” take on law. No matter how obscene this may sound, this very logic is already inscribed at the heart of judicial review in its European and North-American varieties.

Back to the spurious, abject or corrupt motivations of law: we have seen that they dwell at the heart of the nomos. The widespread ethical narrative on decency and fight against corruption seems thus to replace and sap from within every form of progressive politics, every counter-myth. The combination of cynical capital and idealistic representation – in its infinite degeneration and regeneration – and the absence of an effective political-economic-epistemic theory of emancipation do not offer much hope to counter-myth-making. Yet, here reflection and strategic positioning can offer a disconcerting avenue: what if the discourse on corruption and the pursuit of decency masked a deeper anti-nomic meaning? The strength of this anti-nomy, however, does not stem from a pure logical inversion. For the same “society” that revolts against corruption is itself corrupt in the first place. What is key is both an economic and epistemic sensitivity to the common participation in the creation of wealth, in the creation of value, the realization of our shared constitution and deconstitution, exposure to our myth-making and myth-corrupting forces. Here democracy is also a universal value. But where a different form of “value” should take centre stage, as the universal democratization of value – not only to “reclaim” and democratize the state, but to devise a dynamic public sphere so as to decolonize capital, in both its progressive-economic and its representational-political dimensions. The epistemic dimension refers to the realization that the subaltern already are the makers and keepers of the nomos and yet they have something else to offer and share. And one should not be hindered by the structural limitations of the public sphere in modern conditions, supposedly impermeable to the dedication and time necessary for a robust social engagement: for the transformation of the world of work and the modern labour force would rather open more possibilities for participation and reinforcement of the public sphere.

This universal claim of the colonized has its anthropological roots. Eduardo Viveiros de Castro has for many years put forward an ontological turn that gives full credit to the claims of Amerindian peoples, what he calls multinaturalism, as an ontology, and perspectivism, as an epistemology. According to him, the binary distinction between nature and culture is distinctly understood in Amerindian “metaphysics”. In the West, nature would refer to fixed or determinate phenomena, whereas culture is the flexible and variable term. In Amerindian thought, nature is the flexible and variable term, whereas culture is fixed and determinate. At the origin of time, what one finds is not animality out of which humanity evolved, as in scientific modernity, but humanity itself – or an agency whose qualities are tantamount to “human” qualities, and when each entity saw each other for what they are. In the present, the jaguars see themselves as humans, whereas they, and other predators, see humans as tapirs or peccaries, who see humans as jaguars – and successively so that all of nature is relational. I cannot enter in detail and I remain agnostic as to ontology, but what matters here is the relation of this account to the nomos. In fact, this “metaphysics” seems more truthful to current conditions of capital, and even perhaps to metaphysics in general. Subjectivity, not without its roguish contours, remains central and in contrast to rational or self-referential systems that swallow up a no longer fixed or stable nature, and more than that, subjectivity is hardly perceived as having a foundation in nature. Thus, more than giving legitimacy to an ontological “perspective”, I am tempted to conclude that this anthropological metaphysics, inspired by Amerindian encounters, conceals some truth of the West itself. On the other hand, this extreme metaphysics reveals a mimetic power, the shamanic ability to play between worlds (each one of them the whole world) that can offer something else, perhaps a vicarious force to be shared. Thus I both agree and disagree with Viveiros de Castro when he sets indigenous peoples outside capital and state: “For me, Indians are all of those large minorities who are, in some way, on the outside of this capitalist mega-machine, of consumption, of production, of 24 hour a day labour, seven days a week.  These planetary Indians teach us to dispense with the giant machines of transcendence that are the State on the one hand, and the speculative system on the other, the market transformed into image” (interview to El País/2014).  The vast majority of indigenous peoples, and the vast majority of subaltern peoples are somehow subjected to the modern creation of wealth. Perhaps an ethnographic research yet to come will eventually attest that whenever they live in their world, they do so with dignity and decency. Perhaps “they” shall teach “us” that the mimetic power of capital is irreducible to the current nomos. They shall teach us one day that the propensity to the universal is universal and that the other is universal.

Being sensitive to the subaltern’s centrality in value-making processes, debased and exploited by the current capital-state-global system, and to our capacity to make decent worlds should serve as guidance to the pursuit of a concrete universal affirmation, through which new orders and orientations may be forged.

Pablo Ghetti is a Brazilian career diplomat, PhD, University of London, Birkbeck, and former lecturer at the Universities of Exeter (UK) and Cândido Mendes (Brazil).


Mark Harris, "Making Sense of Native Title and The Mythology of Modern Law"

I’m very grateful to be given the opportunity to reflect today on the significance of Peter Fitzpatrick’s The Mythology of Modern Law,[1] twenty-five years after its publication. Given the breadth of this work I’m going to concentrate today upon the significance it had for my own scholarship. It was during the course of writing my dissertation that I first came upon the book sometime around the year 2000. My research was concerned with the nature and workings of native title – what I termed its palimpsestic nature – and its relationship to the law. The dissertation was grounded in my work as a native title lawyer, preparing claims for a number of Indigenous Australian groups in the South-East of Australia. At the time much of the commentary and analysis of the Mabo[2] judgment and the subsequent enactment of the Native Title Act 1993 proceeded from a doctrinal and positivistic approach. To be sure, there were works which proclaimed the significance of the judgment in terms of a victory for Indigenous rights (most of which subsequently proved to be premature and hyperbolic) as well as numerous instances of anthropologists making sense of the law as it related to Indigenous communities. For the main, however, there was a pre-occupation with the readings of the judgments of the High Court and then later the interpretation of specific sections of the legislation. The questions that concerned me were how to comprehend the meaning of native title beyond the current juridical moment. Finding The Mythology of Modern Law therefore represented something of a revelatory moment. The book was a heady brew that ranged across material and sources, some familiar, many not so. Drawing from readings of literature, historical legal jurists, anthropology, critical theory and philosophy it was once both daunting and totally compelling. Peter’s work was revelatory for me in that it offered insight that I had not found elsewhere into the significance of native title and the Law generally for Indigenous Australians. Mythology therefore was (and remains) relevant to my reading of the Indigenous land rights and the treatment of Indigenous Australians by the Australian legal system.

The key questions that my work considered were generally these:

  • Making sense of how the identity of Indigenous Australians are/were determined by interventions within and by the law
  • Understanding the resistance by the settler-colonial non-Indigenous populations to the claims of native title
  • Comprehending the link between colonialism and native title in property.

Those questions were addressed, I felt, in the following ways. Obviously the treatment is necessarily brief and do no justice to the breadth of the book.

Savagery and identity

The historical representation of Indigenous Australians as savages was foundational in the theft of their traditional lands in the colonial period. The doctrine of terra nullius or empty land, which was overturned by the Mabo judgment of 3 June 1992, had been based around the belief that there was no meaningful use and advancement of the lands. In comprehending the symbiotic relationship between race and law Mythology traces the role of the Enlightenment in constructing, as Fitzpatrick puts it, “monsters of race and nature”.[3] The origins of European identity necessitates the identity of the racial other – the savage. So even as modern myth is the ascent from savagery, instead of the descent from Gods, there is a necessity for the Savage as state of nature barbarity to be present to signify that which the Enlightenment being is not. In effect the savage remains latent in the civilized subject, who must accordingly engage in a constant vigilance of self-control.  There is, therefore, the always evident tension and concern at the existence of the Indigenous Other as absent/present. In this moment there is the incommensurability of the Racial Other and its relationship to the Universal – the settler colonial population. So in Mythology he observes:

Myth’s basic function, in its European conception, is the conferring of identity on a people. With the creation of modem European identity in Enlightenment the world was reduced to European terms and those terms were equated with universality. That which stood outside of the absolutely universal could only be absolutely different to it.[4]

Importantly for my work this served to explain the enduring nature of the representations of Indigenous Australians. The depictions of “monsters of race and nature” clearly went beyond a temporal moment – they were not simply a discourse of the colonial dispossession. In this Fitzpatrick anticipates the argument later formulated by Patrick Wolfe that recognizes settler colonialism as not an event but rather a structure.[5]

Resistance to native title

 Paradoxically the native title process requires the production of proof of attributes or performance that historically marked the Indigenous Australian as the Savage. In the text of Mythology I found the means to navigate the abiding and residual colonial violence. The myth of the law and its incarnation in Enlightenment thought in the representations of Indigenous Australians are maintained in the present. At the time of the Mabo judgment for example, the Chair of the Western Mining Corporation, Hugh Morgan, offered the opinion that in traditional Aboriginal society, “Their few utensils, weapons and ornaments were crude. They had no written language, no sense of time or history, no common spoken language”.

It is in Peter’s work that we can trace how the colonial tropes of savagery cannot be considered in a temporal sense – they are constitutive of the myth of the law – and so they remain with the attendant tensions and contradictions. Indigenous Australians are a people of the past, whose very presence speaks to a departure from the Universal, confusingly recognized in the contemporary moment. For the modern liberal legal order there must be some form of rescue or recuperation of the Indigenous presence to the current moment. So while,

[t]he colonised are relegated to a timeless past without a dynamic, to a ‘stage’ of progression from which they are at best remotely redeemable and only if they are brought into History by  the active principle embodied in the European.[6]

Clearly this cannot be the case. They cannot ever be brought into history as part of the Enlightenment project.  As he puts it:

 With the creation of modem European identity in Enlightenment the world was reduced to European terms and those terms were equated with universality. That which stood outside of the absolutely universal could only be absolutely different to it. It could only be an aberration or something other than what it should be. It is thus negatively and inextricably connected to the universal (65)

The place of the Indigenous Other in the space they occupy in native title is never resolved but in Mythology there is a means of comprehending the ambivalence and confusion that the settler-colonial feels.


At the core of the Mabo judgment was the issue of land – and so it is in Mythology where Peter observes that:  “Property was the basis of law” [7] The paramountcy of property is emphasised, as the ordering, unifying effect that distinguishes man from the natural state wherein they had no legal rights. Drawing from Locke, Hobbes, Blackstone and Adam Smith in turn the Mythology outlines how property and rights to property became inextricably tied to the notion of the rightful possessors who advanced it, the “Occidental possessors and builders of the earth”. Much of the tension surrounding the Mabo judgment turned on the incommensurability of the rights of Indigenous peoples and Anglo-Australian property rights.. The former is characterised by uncertainty and indeterminacy, whereas the latter is clear, certain and formulaic. Yet this positivistic view of the law fails to take account of the reservations raised by Blackstone as early as 1765 when he noted that:

There is nothing which so generally strikes the imagination and engages the affections of mankind, as the right of property…And yet there are very few, that will give themselves the trouble to consider the original and foundation of this right. Pleased as we are with the possession, we seem afraid to look back to the means by which it was acquired, as if fearful of some defect in our title; or at best we rest satisfied with the decision of the laws in our favour, without examining the reason or authority upon which those laws have been built.[8]

Blackstone’s comments are particularly appropriate when considered in relation to the manner by which the British Crown first gained sovereignty over Australian lands. Clearly the “original foundation” of the rights to property gained under the legal fiction of terra nullius is less than stable, yet there remains an inability to comprehend the fact that there could be other, competing rights to the same property. The Mythology made clear for me the manner in which the myth of law could sustain the settler-colonial claims to property, regardless of the clear defects in title. To a degree the Mabo judgment could be seen to be a move that, while ostensibly giving recognition to Indigenous rights, serves to confirm and rectify those same defects.


For me then, The Mythology of Modern Law was a profound influence upon my own scholarship that remains to this day.  And I would only add that I finally met Peter for the first time a year later at a Law and Society conference in Budapest where I was struck by the generosity of his encouragement to a junior scholar.  It is a generosity of spirit, scholarship and intellect that I have been the beneficiary of through the ensuing years and for which I am eternally thankful.

Mark Harris is Associate Professor, Institute of Gender, Race, Sexuality and Social Justice., University of British Columbia, Canada.

[1] Peter Fitzpatrick, The Mythology of Modern Law (New York and London: Routledge, 1992).
[2] Mabo v Queensland (No 2) [1992] HCA 23; (1992) 175 CLR 1 (3 June 1992).
[3] Supra note 2 at 45.
[4] Ibid. at 65.
[5] See Patrick Wolfe, Settler Colonialism and the Transformation of Anthropology: The Politics and Poetics of an Ethnographic Event (London and New York: Cassell, 1999).
[6] Supra note 2 at 110.
[7] Ibid. at 82.
[8] William Blackstone, Commentaries on the Laws of England, Book II: On the Rights of Things, Chapter I: On Property in General at 1.

Abdul Paliwala, "The Northern Voice?"

Some books transform lives – Peter Fitzpatrick’s Mythology of Modern Law[1] is one such! It is fitting that this panel was held at Warwick.  From the late eighties since its publication, we gave our Law in Development LLM students a chapter to read every year. Initially they would respond with perplexity. Then Peter would arrive and discuss the work, and after that all were enlightened by mythology!

Peter’s Mythology constitutes a devastating deconstruction of modern law. The myth of modernity is dependent on modernism’s denial of the savage, myth-ridden other while claiming an enduring universality for itself. For the Southern scholar, once the mythical nature of modernity is itself exposed, the ‘savage’ other, and the Southern epistemology, can be given their proper places.

In the preceding session at the Critical Legal Conference (CLC), I discussed Walter Mignolo’s border thinking.[2] For him a subaltern Southern perspective cannot emerge from just observing the border. It has to be from being inside the epistemic border from the perspective of the Subaltern.  Mignolo’s position is not that you have to be a ‘Southerner’ to be on the epistemic South side, nor would I agree if he did say so. However, as Gayatri Spivak’s challenge “Can the Subaltern Speak”[3] suggests, even to her fellow subaltern studies group members, it is a hard ask to be in the border from the epistemic South side.

Peter Fitzpatrick lived in Papua New Guinea and wrote Law and State in Papua New Guinea and was a significant influence in the development of law. As I tried to illustrate in my chapter “Living by Firelight” in the Fitzpatrick festschrift – Reading Modern Law – a significant amount of his subsequent published works are influenced by that PNG experience, but also experience of Southern epistemologies.[4] If Derrida[5] and Foucault[6] are his hand holders in Mythology, the propelling force is that of Edward Said’s Orientalism.[7] While references to Said are minimal, the implication is profound. The occidental myth of modern law is dependent on the other which “in its uncivilised or pre-modern state, is the construct of the West.”  More especially, “the other cannot speak” against this because of “the West’s arrogation to itself of truth”.[8] Fanon is cited to illustrate colonialism’s relegation of the colonised and their culture to a timeless past.[9]

Papua New Guinea influences are sparse but provide the incisive argument of the damage by colonial mis-readings of modes of regulation. Citing Marilyn Strathern,[10] he suggests that the key difference between the Western and the Papua New Guinean modes of regulation is that Western social action remains apart from and unaffected by what it controls/regulates/modifies, whereas for the people of Mount Hagen one mode of regulation, such as fighting or gift exchange or talk is deeply influenced by or transformable into the other.[11]

Yet while these and other Southern epistemic interventions are significant, this is not Peter’s gaze. He may have lived in the border and been inspired by it, but his living there was from the Northern side. His quest, his challenge, is not to introduce Southern epistemologies to Northern audiences, but rather to challenge those Northern audiences, to show that the imperialist colonialist post-colonialist emperors had no clothes – but used the myth of the naked native to shroud themselves.

Peter’s gaze is unsparing – imperial/colonial racists such as Spencer are easy targets, but so are the great scientists such as Darwin and liberals such as Mill, sociologists such as Weber and Durkheim and of the left including Uncle Marx. But specifically, the book is about modern law, and here the gaze shifts from Austin and Maine to Hart and Dworkin but even apparent crits such as Unger. Nevertheless, it is easy to see who is the real target of the book, why the book was written in the first place. The last chapter[12] is devoted to Hart (especially The Concept of Law)[13] – the man who restored positivism by giving it a new face clothed in linguistic philosophy. But then Peter finds that the linguistic façade is undermined by the same myth of origin – of law’s progress from a mythical primitive society which had only primary rules to one of greater complexity- of a merger of primary and secondary rules.

So why should this Northerner’s gaze appeal so much to my mainly Southern students? And looking North, why have the citadels of liberal legalism not been shaken by this profound work?

The first question is easy to answer. For years we Southerners were brought up to believe in the majesty of the law – the great gift of the common law. It is great to know that that gift is poison. This has left room for Mignolo[14] and other border thinkers from the South or Jayan Nayar’s[15]anti-colonial frontliners to claim their rightful de-anti-colonial places.

The second question, why the citadel of Hartian/Dworkinian positivism not fallen is more difficult for me!  It is the reason why we have so many naked emperors of the North and South destroying our world. Perhaps you the readers have a better answer!

Abdul Paliwala is Emeritus Professor, University of Warwick, School of Law.

[1] Peter Fitzpatrick, The Mythology of Modern Law (New York and London: Routledge, 1992).
[2] Walter Mignolo, Local History/Global Designs: Coloniality, Subaltern Knowledges and Border Thinking (Princeton: Princeton University Press, 2012); Abdul Paliwala, “Unsubmerging Resistant Anti-Colonial Perspectives”, Critical Legal Conference, University of Warwick, September 2017.
[3] Gayatri Spivak, “Can the Subaltern Speak?”, in Cary Nelson and Lawrence Grossberg (eds) Marxism and the Interpretation of Culture (Illinois: University of Illinois Press, 1988) 271-316.
[4] Abdul Paliwala, “Writing by firelight: constructing an enduring consciousness of post-coloniality” in Ruth Buchanan, Stewart Motha and Sundhya Pahuja (eds), Reading Modern Law: Critical Methodologies and Sovereign Formations (London, Routledge: 2012).
[5] Jacques Derrida, Margins of Philosophy (Chicago: University of Chicago Press, 1982); Jacques Derrida, “Force of Law: ‘The Mystical Foundation of Authority’” (1990) Cardozo Law Review 11: 919-1046.
[6] Michel Foucault, The Order of Things: An Archeology of the Human Sciences (London: Tavistock, 1970); Discipline and Punish: The Birth of the Prison (City: Penguin, 1979); and The History of Sexuality: Volume I London: Penguin, 1981).
[7] Edward Said, Orientalism (London: Penguin, 2003).
[8] Supra note 2 at 30.
[9] Franz Fanon, Black Skin, White Masks (New York: Grove Press: 1967).
[10] Marilyn Strathern, “Discovering ‘Social Control’”, Journal of Law and Society, (1985) 12(2): 111-34.
[11] Supra note 2 at 55.
[12] Ibid. at Chapter 6.
[13] Herbert L A Hart, The Concept of Law (Oxford: Oxford University Press, 1961).
[14] Supra note 3.
[15] Jayan Nayar, “(B)orders and Encounters: On Thinking Being-Other-Wise”, in Sam Adelman and Abdul Paliwala (eds), Beyond Law and Development: Resistance, Empowerment and Social Injustice (London and New York: Routledge, forthcoming 2018).

Patricia Tuitt, "Justice and the Mythology of Modern Law"

Despite its rejection of antiquity and its claims to total originality, the Enlightenment often re- patterned old mythic themes, making them its own. In one such theme, law is contrasted fundamentally with the savage state.[1]

 I am not alone in thinking that among the more significant insights of Peter Fitzpatrick’s Mythology of Modern Law is to be found in the relation he traces between modern European legal systems and savagery. For Fitzpatrick the constitutive link between law and savagery is made to bear upon particular individuals or groups. In chapter three the reader is introduced to a modern law in which “…the equation of law and sociality in contrast to the solitary state of the savage or the savage family…” was made concrete in the depiction of the American Indian as “… propertyless and lawless…”.[2] It is the indigenous of the “New World” who were perceived as “…lawlesse and naked…”[3], having “…few social relationships with other men, and … subject to neither government, nor law”.[4]

In this short piece I suggest that the relation between law and savagery, which Fitzpatrick uncovers within positivist and natural law traditions, persists within the post-modern scene of normative theories – many of which have engaged an extensive critique of positions of dominance in modernity. Whilst time has brought about changes in the terms according to which the contrast between law and the savage state has been narrated, the designation as lawless of those who, for the purpose of this paper, I refer to as the “colonised” persists in the post modern legal system. The myth of law and savagery today is perhaps most operative whenever the weight of the criminal law is brought to bear disproportionately on the colonised, rendering her very being an affront to notions of law and order.

As can be gleaned from chapter five of the Mythology, Fitzpatrick foresaw the various ways in which the myth of law and savagery would be reborn and reconfigured. The post-modern presentation of the myth resides within normative theories which pose an alternative to law. These are theories which oppose law ostensibly because of the laws deep investment in the putative savage state. These theories can be signposted under a number of labels: communitarianism and transformative justice being the terms in common use. In chapter five, Fitzpatrick captures these theories within the notion of popular justice. He devotes limited space to the claims of so-called popular justice over law, but even in that limited space Fitzpatrick reveals the deeply problematic nature of the myths comprised within the notion of transformative or popular justice when he sees in such theories a “return to primitivism”.[5]

In exploring positivist and natural law traditions, Fitzpatrick signposted myths that attributed inferior status to women and non-citizens; myths which asserted that certain individuals were intended by their nature to reside permanently beyond the law: for “natural fools, children or madmen” there is no law.[6] Similarly, the narratives that posit a civilised ideal in “popular justice”, in the idea of “…communities and other particular groupings, natural and spontaneous in their self regulation…”,[7], “…retreating from formal regulation…”,[8] are also myths. These post-modern Justice myths-like the modern myths they ostensibly oppose-are fundamentally reliant on the dichotomy between a savage and civil state, and still call to aid the law in delineating and mediating the two realms.

Says Fitzpatrick:

There is a certain mutuality to myths…a myth will depend on other myths for its “full” meaning and effects … but a myth self-evidently retains distinctiveness and difference from other myths.  In this, a myth opposes other myths in the field. The mythical field, I argue, is one of mutual relations of opposition and support, of autonomy and dependence.  The relation of mutual support and dependence becomes attuned in the cause of a myth’s autonomy when that autonomy is challenged, either by an opposing myth or by mundane reality.  In these events, another myth will, as it were, compensate for the shortfall exposed by myths or a resistant reality.[9]

For as long as counter critique locates itself within the Western Canon, a core of philosophical ideas will remain intact.  This is a familiar criticism of the philosophical terrain, and it calls attention to just one dimension of what Fitzpatrick speaks of as the mutuality of myths.  Yet it is a dimension which insists upon the innocence of a counter critique – one unwillingly subjugated to an older, and thus more settled, tradition. However, the myth of a justice which claims to be “essentially different” from a “formal and alienated realm”[10] of law because of the higher ability of its proponents to self-regulate[11] reveals a more sinister dimension of the “mythic mutuality between popular justice and law”,[12] which Fitzpatrick readily comprehends when he designates popular justice theorising as a  “return to primitivism”.

In this return to primitivism the myth of the savage, lawless colonised is perfected.  It is perfected because, now taken up by the coloniser, the savage state is stripped of the content imposed on it through natural and positive law theories – rendering in perfect completeness the absolute truth behind the myth: that savagery is simply and enduringly what the European is not.  Thus, the return to primitivism performs the greatest violence on the colonised – reminding her that she can never be civilised – even – indeed especially – as she mythically embraces the law she once mythically disavowed.

The mythical state of being ungoverned by law, which served to condemn the colonised as savage, is now the mythical state which projects the coloniser onto a higher plane of civilisation. The mythical state of being subordinated to law or form of government,[13] which distinguished the civilised European from the barbarian, is now the mythical state that relegates the conlonised outside of the new civilising framework.  The new civilising framework is supported by a justice myth, which Fitzpatrick refers to as a “vacuous Utopia constituted in abrupt opposition to the perceived inauthenticity of certain resistant sites of power”.[14]

In the long journey from natural law theories to its various normative and critical appearances, what remains is that the colonised’s access to, and relation with, law is always on the terms of the coloniser.  Those terms are, as ever they were, significantly influenced by the theories of law which prevail at any given point in history.  Today, the terms of the coloniser is precisely one in which the colonised must negate the law.  She must mythically return to the primitive state in which she first appeared in the narratives containing a theory of law. To paraphrase Fitzpatrick, the merely false myth of modernity, which contrasts law with the savage state, in its post-modern presentation has become something that is more true than it can be.[15]

Patricia Tuitt is a UK (London) based Legal Academic with a sustained track record over more than twenty years of research, teaching and strategic management within the field of Critical Legal Studies

[1] Peter Fitzpatrick, The Mythology of Modern Law (New York and London: Routledge, 1992) at 72.
[2] Ibid. at 72.
[3] Ibid. at 73.
[4] Ibid. at 77.
[5] Ibid. at 147.
[6] Ibid. at 75.
[7] Ibid. at 170.
[8] Ibid. at 169.
[9]Ibid. at 146.
[10]Ibid. at 169.
[11] Ibid. at, for example, 176-77.
[12] Ibid. at 170.
[13] Ibid. at 77.
[14] Ibid. at 178.
[15] Ibid. at 17.

Peter Fitzpatrick, "Ultimate Legality"

‘Outside the law, nothing;

above the law, nobody.’

(Inscription on a mug in support of Lopéz Abrador in the Mexican presidential election of 1st July 2018.)

An initial invocation of the impossible – there will be others: this one would be the impossibility of adequately expressing my thanks to Brenna and Sara for bringing about this whole show, then to Abdul, Mark, Pablo, Patricia and Tara for their engrossing papers, and to all of the above for their generative effect on my current work.[1] What I will do in this piece is to engage briefly with most of the main issues raised in the papers and integrate these issues with publications emerging mainly after work on The Mythology of Modern Law was complete – publications which would have radially affected it.[2] All of which leads to a culminating engagement with law as sociality that matches the epigraph above.

As the papers amply illustrate, an obsession of Mythology is the constituent claim of a supposedly modern Occident to an enduring essence that is universal – an essence concentrated in such as imperial and sovereign rule. The persistent force of this claim is vividly evoked in Mark’s paper and its engagement with his forte, ‘native title,’ an offspring of the Mabo case decided in Australia in 1992.[3] Following on Mabo there were several cases in Canada and South Africa confirming, like Mabo, the outcome of a series of cases in the United States in the late eighteenth and early nineteenth centuries.[4] What all these cases asserted was the absolute control still possessed by the settler state over Indigenous peoples. More specifically, these cases embed the state’s ability to contain and hold Indigenous peoples in stasis to the effect that should their decreed ‘traditional’ identity change significantly, it would be lost. In the process the general dominance of the national sovereign over law is explicitly confirmed.

Thence the next impossibility, or seeming impossibility: how can such an arrogation, one requiring a transcendent competence, be so conspicuously claimed in a supposedly modern, secular world? The answer offered by Mythology:

Occidental being is impelled in a progression away from aberrant origins. It is formed in the comprehensive denial of the ‘other’ – in assertions of universal knowledge, imperious judgement and encompassing being. Since it is constructed in negation, in terms of what it is not, this being is unbounded and able mythically to reconcile its particular and contingent existence with its appropriation of the universal.[5]

Operative elements of this negative universal reference are often outlined in Mythology but the book fails to give these elements the focal orientation they need. Briefly, and coming to yet another impossibility, the antithesis of the universal, what is ‘other’ to it, can only be entirely excluded from it. Yet the universal has also to be all-inclusive. Hence the unity of the species, yet a species fundamentally divided. The hiatus is putatively to be overcome by ‘improvement,’ in the terminology of the eighteenth century, and by ‘progress’ and ‘social evolution,’ in terms of the nineteenth century and beyond.

The range allowed this negative universal reference throughout Mythology is somewhat restricted. Its focus on racism is only briefly extended to gender, class, varieties of abnormality, and more – finding that ‘we are all savages now’.[6] Confidence in advancing this extended negative universal reference would have been boosted by Foucault’s expanded idea of racism in the last lecture of ‘Society Must Be Defended’ where ‘state racism matches the ‘biopower’ he sees encompassing life.[7] Confidence would have been boosted also by the creative refinement Patricia brings to bear on the negative universal reference and especially in her linking it to the ‘popular justice’ engaged with in Mythology.[8]There the vaunted opposition between law and popular justice secures a supportive mutuality between them, a relation which Patricia fuses with the negative universal reference.

In a belated bout of responsibility, the negative universal reference is extended also to Jurisprudence in the last chapter of Mythology, ‘Law as Myth,’ a rather protracted dissent from Hart’s The Concept of Law – an effort aptly summarized in Abdul’s paper and more extensively considered in Tara’s adroit extension of its argument.[9] The sustained significance of the target is reflected at the outset of Brian Simpson’s Oxfordian voyage through and around The Concept of Law, published in 2011, where he notes that ‘[i]t has sold over 150,000 copies’ – ‘…the most successful work of analytical jurisprudence ever to appear in the common law world’.[10] That is a rather more grounded variant of the standard elevation of the book as the most influential work of legal philosophy or Jurisprudence in such other extensive domains as the English language and the twentieth century.

There is a rather more dramatic revelation post-Mythology and that is the revised status of the ‘primitive societies’ from the deficiencies of which Hart extracts his focal discovery: the emergence of a ‘legal world’ accompanied by an officialdom able by way of ‘secondary rules’ to make, to identify and to apply law.[11]As Simpson notes, Hart’s account of such societies is wildly inaccurate yet intended to be ‘empirical’.[12] However, in a Postscript to the second edition of The Concept, published thirty-two years after the first, Hart describes ‘the secondary rules…as remedies for the defects of an imagined simple regime consisting only of primary rules of obligation…;’ and he refers shortly thereafter to ‘curing, among other defects, the uncertainty of the imagined pre-legal regime of custom-type primary rules of obligation’.[13] In a somewhat similar vein, in his introduction to the third edition Leslie Green finds that Hart ‘famously introduces his main argument through a fictional history of social development’.[14]

This fictional, this imagined, this mythical (one could say) yet epoch-making primitive society is seen in very different terms in The Concept. There this society, along with its generative effect, becomes a ‘matter of history’ or of ‘the history of law,’ verified in ‘many studies,’ three of which offering its ‘nearest approximation’ are eventually and inaptly referred to.[15]The movement beyond such a society with the adoption of the secondary rules is for Hart ‘a step forward as important to society as the invention of the wheel’. More intriguingly, Hart’s depiction of a primitive society and of the decisive terms of transition to ‘secondary rules’ and legality is barely distinguishable from Locke’s in The Second Treatise of Government.[16] Simpson would agree, finding the two to be ‘extremely similar’ and finding, for good measure, that, ‘[l]ike Hart, Locke claims that his account is empirically based’.[17]

Whatever the route, the end is disaster. The relegation of primitive society, with its uniformly shared closeness of communal connection and ‘rules seen from the internal point of view,’ seems to allow, even to require Hart to neutralize this demotic dimension of legal rules, a dimension that had enabled him to displace Austin’s sovereign with its pretension to being the ultimate source of a positive law. But then with Hart’s ‘main argument,’ as Green put it, the productive inadequacy of this primitive society leads to an ultimate legality contained within the officialdom operating the ‘secondary rules’ with only officials needing to see rules ‘from the internal point of view’. As Hart observes, such an officialdom is thence enabled to assume total power. That rather outpaces Austin’s comparatively fragile sovereign.

Self-criticism is not quite so enjoyable. Dissenting from Hart’s ‘law’ should have prompted some regard for what it was set against and why. Drawing on Abdul’s summary, Mythology could be seen as fixated on the negative constitution of a surpassing occidental identity, including its surpassing law, culminating in Hart’s standard conception of law as a generative counter to ‘primitive’ societies. What is being rejected by way of this ‘imagined simple regime’ are the inadequate ‘rules’ emanant from being-in-community. Hart’s disregard for community as formative of law allows law’s positivist packaging to be preserved. Mythology is complicit. Law may be rendered as myth but myth is imbued by sociality. In Mythology regard for the social element in or as law, or in a mythic mutuality with law, is confined to constituting law in negation.

Pablo’s paper offers a corrective, without its being offered as such. His invoking of both poststructural thought and the relation involved in sociality point in a direction that Mythology could have (also) gone. Pablo’s insights will be returned to shortly, but for now they can connect to what could be called poststructural law. A compact setting comes with Derrida’s ‘law of originary sociability:’

… we are caught up, one and another, in a sort of heteronomic and dissymmetrical curving of social space – more precisely, a curving of the relation to the other: prior to all organized socius, all políteia, all determined ‘government’, before all ‘law’. … Let’s get this right: prior to all determined law, qua natural law or positive law, but not prior to law in general. For the heteronomic and dissymmetrical curving of a law of originary sociability is also a law, perhaps the very essence of law.[18]

This for Derrida is a ‘law above the laws and law outside law,’ the law beyond, which still ‘needs the laws,’ needs the determinate laws: ‘it requires them’.[19] Effect is given to this combination of an illimitable law beyond and a determinate law through each ‘realm…exceeding’ the other ‘in the direction of the other – which means that in their very heterogeneity, these two orders are undissociable [sic] de facto and de jure’.[20]

Those two realms could match Nancy’s ‘community’ – the community as a ‘work’ that is constantly in a process of ‘unworking’ thus enabling relation as formed yet continually adaptive, and thence a community which in its ‘finitude always presents itself in being-in-common,’ and ‘always presents itself…before the judgment of the law of community, or, more originarily, before the judgment of community as law’.[21]

Bringing that ‘law’ to bear on Mythology would reveal it to be an opening out to what is beyond an occidental positioning but without any explicit connecting beyond. It raises the prospect of connection but restricts itself to ‘an attempt at internal decolonization’.[22]Or, as Pablo aptly puts it, in its focus on the Occident the book is ‘a sort of self-anthropology or self-ethnography’ which also contains ‘ethnographic insights…that stem from the global South,’ and in so doing it ‘triggers a desire to imagine the reverse operation of a rationality of indigenous law’. Engaging with the constituent connection between this law and the law ‘internal’ to the Occident would, as Pablo intimates, accord with the dynamic of deconstruction – and that dynamic would, in terms of my previous paragraph, match the interaction of the ‘realms’ creating law advanced by Derrida as well as the components of Nancy’s ‘community as law’. In sum, the answer to the question posed in Abdul’s title, ‘The Northern Voice?,’ is ‘yes,’ even if, as he notes, Mythology contains ‘Southern epistemic interventions’ which ‘are significant’. Help in going ‘beyond’ this voice is at hand in Abdul’s referring to Mignolo and his ‘border thinking,’ an instance of that ‘decolonial’ thought which has become prominent since Mythology appeared – a thought the focal imperative of which is seen by Anibal Quijano as an

… epistemological decolonization, as decoloniality,… needed to clear the way for new intercultural communication, for an interchange of experiences and meanings, as the basis of another rationality which may legitimately pretend to some universality.[23]

There is always more to be done.

Peter Fitzpatrick is an Honorary Professor of Law at the University of Kent.

[1] Thanks also to the organizers of CLC at Warwick for their generous accommodation of the event and to Chris Lloyd for invaluable guidance on Hart’s The Concept of Law. That guidance will be relied on shortly. Tara’s paper concentrated her ‘Naturalising the Myth: Hart, Biopolitics, and the Body Corporate’, later published in the Australian Feminist Law Journal 43/2 (2017), 251-272.
[2] Peter Fitzpatrick, The Mythology of Modern Law (Routledge: London, 1992).
Mabo v State of Queensland (No.2) 175 Commonwealth Law Report 1 (1992).
[4] See Brenna Bhandar, Colonial Lives of Property: Law, Land and Racial Regimes of Ownership (Durham and London: Duke University Press, 2018), chapter 1, and Peter Fitzpatrick, ‘“We know what it is when you do not ask us”: The Unchallengeable Nation,’ Finnish Yearbook of International Law XV (2004), 129-147.
[5] Fitzpatrick, Mythology (note 2), ix-x.
[6] Above, 133 and generally 131-134.
[7] Michel Foucault, ‘Society Must Be Defended’, translated by David Macey (London: Allen Lane, 2003), 239-264.
[8] Fitzpatrick, Mythology (note 2), 147, 169-180.
[9] Mulqueen, ‘Naturalising’ (note 1).
[10] A. W. Brian Simpson, Reflections on ‘The Concept of Law’ (Oxford: Oxford University Press, 2011), 1.
[11] The many quotations following from The Concept of Law proper (the text of which has not changed in its three editions) will not be explicitly referenced. Concentrated accounts containing the references can be found in Mulqueen ‘Naturalising’ (note 1), 251-257, and Peter Fitzpatrick, Modernism and the Grounds of Law (Cambridge: Cambridge University Press, 2001), 97-99.
[12] Simpson, Concept (note 10), 176, and see also 175.
[13] From the third edition. H. L. A. Hart, The Concept of Law 3rd Edition (Oxford: Oxford University Press, 2012), 238-271 at 238, 249 and 251.
[14] In Hart above, xv-li at xlix.
[15] The most striking error comes with Hart’s general reference to Malinowski’s Crime and Custom in Savage Society (London: Routledge and Kegan Paul, 1926). However some regard for pp. 55 and 74 would have revealed that in the society Malinowski studied law is ‘clearly distinguishable, and distinguished…from other types of norm’.
[16] John Locke, The Second Treatise of Government, in Two Treatises of Government (New York: New American Library, 1965), 396– paras. 124-126.
[17] Simpson, Concept (note 10), 176.
[18] Jacques Derrida, Politics of Friendship, translated by George Collins (London: Verso, 1997), 231, original emphasis.
[19] Jacques Derrida, ‘Step of Hospitality/No Hospitality,’ in Jacques Derrida and Anne Dufourmantelle, Of Hospitality, translated by Rachel Bowlby (Stanford: Stanford University Press, 2000), 79, original emphasis.
[20] Jacques Derrida, ‘Force of Law; The “Mystical Foundation of Authority”,’ translated by Mary Quaintance, in Jacques Derrida, Acts of Religion (London: Routledge, 2002), 230.
[21] Jean-Luc Nancy, ‘The Inoperative Community,’ translated by Peter Connor, in Jean-Luc Nancy, The Inoperative Community, (Minneapolis and Oxford: University of Minnesota Press, 1991), 31 and 28.
[22] Fitzpatrick, Mythology (note 2), 13.
[23] Anibal Quijano, ‘Coloniality and Modernity/Rationality,’ Cultural Studies 21/2 (2007), 168-178, 177.


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