No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 25 September 2015
Professor Milner S. Ball extends an invitation to creativity. His essay offers a provocative new way to think about law. He examines neither specific codes and pronouncements nor traditional theories of jurisprudence. Ball instead takes a radically new tack in directing our attention to the much broader ways in which our society conceptualizes and expresses law. Carefully avoiding the use of definite and indefinite articles with the word “law,” he suggests that law possesses a far more powerful essence than simply functional or utilitarian qualities. Within the context of his metaphorical thinking, law becomes an all-pervasive experience which embodies and reflects our experiences and assumptions. If one takes Ball's suggestion seriously, which I do, that metaphors are “a fundamental mode of understanding and experience,” then the task in part becomes to expose the substance of such an understanding and experience.
1. Though with quite different goals, the focus on law as metaphor has been the subject of increasing attention in legal scholarship. See, e.g., Murray, , Understanding Law as Metaphor, 34 J. Legal Educ. 714 (1984)Google Scholar.
2. While the concept of “metaphor” is central to Professor Ball's creative analysis, I have chosen by and large to avoid the use of that term. Ball invites us to join with him in identifying additional allied members of his cluster for law as medium, or perhaps to suggest alternative metaphors. This specific invitation, however, I decline at this point. I do so partially because to focus on understanding law through alternative metaphors, whether Ball's “medium” or Shaffer's “home,” leaves unexamined, I fear, the underlying presuppositions in which this inquiry takes place. It is for this reason that I focus on the “demythologizing of law.”
3. Stating as I do here, that theology is relevant to the study of law suggests that theological methods are capable of providing significant insights into legal issues. In a forthcoming article, Three Fallacies of Contemporary Jurisprudence, 19 Loy. L. A. L. Rev. 1 (1985)Google Scholar, I develop more fully the contributions that theology and theological thinking make to legal inquiry. Berman, H., Law and Revolution: The Formation of the Western Legal Tradition (1983)Google Scholar, also traces the religious foundations present throughout the development of law and concludes that, “[t]he connection between the religious metaphor and the legal metaphor has been broken.” Id. at vi. Other contemporary scholars, most notably Finnis, J., Natural Law and Natural Rights (1980)Google Scholar, have perceived the inherent limitations in a jurisprudence that embraces rationalism without reservation.
4. Both the power and the inherent dangers of uncritical acceptance of metaphors are suggested by Professor Berman's reminder that “the metaphors of the day before yesterday are the analogies of yesterday and the concepts of today.” Supra note 3, at 165.
5. Rudolf Bultmann, in his classic works on New Testament theology, introduced the method of “de-mythologizing” the subject matter of one's inquiry in order to reveal more clearly what the inquirer can discern from the focus of inquiry. Bultmann, R., Kerygma and Myth (1953)Google Scholar, and Bultmann, R., Jesus Christ and Mythology (1958)Google Scholar. With a strong reliance on Heidegger's existentialism, and a Christology akin to Martin Luther's, Bultmann suggested that “de-mythologizing is an hertneneutic method, that is, a method of interpretation, of exegesis.” Jesus and Mythology at 45. The volume of commentaries spawned by Bultmann's theology is immense. An excellent summary of his theology may be found in MacQuarrie, J., Rudoplph Bultmann, in A Handbook of Christian Theologians 445 (Marty, M. & Peerman, D. eds. 1965)Google Scholar. See also Macquarrie, J., The Scope of Demythologizing (1960)Google Scholar.
6. Though developed in part out of the desire to be able to interpret New Testament theology from a twentieth-century world view rather than from a Scriptural world view, this method of interpretation reveals how “every interpreter brings with him certain conceptions, perhaps idealistic or psychological, as presuppositions of his exegesis, in most cases unconsciously.” Bultmann, R., Jesus and Mythology 48 (1958)Google Scholar. I attempt in this response to Milner Ball's essay to identify some of these “presuppositions,” these unspoken premises. It would be a mistake to read into this tentative analysis of demythologization of law any more than rough parallels with the hermeneutical method of Bultmann. Though substantive correlations may exist, my purpose at this point is simply to indicate the utility of this particular mode of interpretation.
7. “The real purpose of myth is not to present an objective picture of the world as it is, but to express man's understanding of himself in the world in which he lives. Myth should be interpreted not cosmologically but anthropologically, or better still, existentially.” Bultmann, R., New Testament and Mythology, in Bartsch, I. H., Kerygma and Myth: A Theological Debate 1, 10 (Fuller, R. trans. 1957)Google Scholar.
8. The term “demythologizing” has also been used to refer to the approach taken by the legal realists in analyzing the substance of law. “The New Dealers were also [along with the Realists] demythologizers.” White, , From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America, 58 Va. L. Rev. 999, 1025 (1972)CrossRefGoogle Scholar. Such uses of the term stand in sharp contrast to Bultmann's hermeneutics in which demythologizing served not to destroy myth but to determine the significance of myth for understanding one's experience. “[T]he use of mythological language, far from being an objection to de-mythologizing, positively demands it.” R. Bultmann, supra note 6, at 67. See also Schmithals, W., An Introduction to the Theology of Rudolf Bultmann 249–72 (2d ed. 1968)Google Scholar.
9. The dilemma of simply posing contrasting metaphors or mythologies without critically inquiring into the accuracy of such mythologies for our experience is reflected by the present debate between Dean Paul Carrington and scholars writing in the “Critical Legal Studies” movement. In a not so veiled attack on the Critical Legal Studies movement, Dean Carrington uses Mark Twain's images of riverboat piloting as a backdrop against which to conclude that “nihilist teachers” of law (who remain unidentified) have “an ethical duty to depart the law school.” Carrington, , Of Law and the River, 34 J. Legal Educ. 222, 227 (1948)Google Scholar. This conclusion, I suggest, reflects what happens when our arguments remain at the level of protecting a mythology as opposed to questioning whether the mythology assists in a responsive manner in coming to grips with the underlying premises. There are existential premises implicit in Dean Carrington's analysis; for examples: “A law teacher who does not know that he or she enjoys power needs closer self-acquaintance,” id. at 222; “As technocrats we can lose feelings for the human tragedies in which we participate,” id. at 224; “those who use intuition need to know its limits,” id. at 226. These seem to be premises that scholars in the Critical Legal Studies movement would not necessarily dispute. If, indeed, there is some degree of agreement on the unspoken premises, the task is not so much to dispute the historical accuracy of the metaphors themselves, but rather the manner in which the dominant conceptualizations are responsive in a constructive manner to such premises. The assertion that a “no-hassle pass” effectively “avoids important learning,” or that critical skepticism threatens competence is certainly one manner of responding to these premises. Another option, however, is that a less intimidating pedagogic style, or acknowledged skepticism may well contain a greater degree of resonance with the inital premises.
10. Schaffer, , Slippered Feet Aboard the African Queen, 3 J. of Law & Relig. 193 (1986)CrossRefGoogle Scholar.