Published date01 July 2004
Date01 July 2004
AuthorAdam Gearey
Adam Gearey
Aesthetic jurisprudence must take seriously the myth of community,1the
antagonistic of intimacy; love and death.2Myth, however, must also be seized
in its peculiarity. Rather than affirming coherence or the pattern of the past, it is
a discourse that undoes itself. Indeed, myth does not provide a comforting story
of belonging and foundations, it reminds us of the antagonisms of the human
condition and the problematic nature of thought itself.
These themes can be laid out less elliptically, although this essay remains
something of an outwork to any further and more in depth engagement with
myth and aesthetics. Aesthetic jurisprudence is still without a clear sense of its
own province. A more precise understanding of the subject’s boundaries could
perhaps be gained by seeing it as the most recent inheritor of the problematic of
myth. Has it been so received in American jurisprudence? Our engagement will
focus on the work of Robin West and Pierre Schlag, twoscholars whose work can
be seen as providing recent and extended engagements with notions of aesthetic
jurisprudence.3However, we need to ask certain questions about the vision of
myth that informs the work of these scholars. These questions will take us towards
the work of Leslie Fiedler on the American novel. The novel is seen as the central
contemporary mythic form that engages with community as the fractured space
Studies in Law, Politics, and Society
Studies in Law, Politics, and Society,Volume 33, 3–23
Copyright © 2004 by Elsevier Ltd.
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1016/S1059-4337(04)33001-2
of the intimate.4This is inseparable from the idea of law as community; the space
between love and death where we relate to each other.These concerns will be read
into the work of Drucilla Cornell. We will see that her jurisprudence both repeats
these myths and attempts to open up a critical space. Myth becomes associated
with a form of thinking that operates through irresolution, but celebrates a future
that is open; a movement away from the dead forms of the past. It will be
suggested that her notion of the recollective imagination can provide a viable
theorisation of aesthetic jurisprudence, and we will exemplify this thesis with a
reading of Mark Twain’s The Adventures of Huckleberrry Finn.
Myth can provide aesthetic jurisprudence with a focus, a point at which this most
challenging, but perhaps also most scattered and disputed form of legal theory can,
at least momentarily, gather itself; or gather itself in its dispersal.5
Within the terms of this short essay it is impossible to provide an adequate
summary of the contemporary study of myth, but it is necessary to provide a
basic orientation to the theoretical approach that will be taken. Perhaps the major
theme running through contemporary theory of myth has been the sense in which
modernity has not escaped the order of mythology. There are many variations on
this theme, from Adorno and Hawkheimer through Bataille and Levi Strauss to
Nancy,naming butfiveof themost provocativeandinfluential writers.Whilst myth
and law has been a pervasive theme, it has not been the main focus. Given this
issue, it seems sensible to turn to a legal scholar whose work on myth comes out of
a continental philosophical tradition but develops a more thorough reading of the
intersection of law and myth. Peter Fitzpatrick (1992) has argued that to deploy
the term mythology in jurisprudence is to use a language that the legal order would
itself reject as inappropriate for contemporary legal theory.Myth describes the pre-
modern accounts of law’s emergence in divine gift or the gods’ commandment.
Secular law, by its very separation from the pre-modern and the superstitious
cannot have recourse to myth. However, Fitzpatrick argues that modern, secular
law has an essential congruence with mythic modes of thinking. Myth and law are
comparable in that they articulate reality and give it “form.”Thus, a mythology of
law is concerned with the auto-creation and justification of a mode of thought, an
entire metaphysical set of suppositions that make a worldview possible.
It is easy to misunderstand this approach. Although Fitzpatrick’s work effec-
tively re-reads an entire jurisprudential tradition, it does not attempt to create a
new mythology of law,or even, strictly, to appeal to myth as a means of providing

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