From Myth to Law
Every society has a mythology surrounding the origins of rules of conduct and systems of law, revealing that law is not based on experimental data. Such myths most often begin with a postulated relationship to a sacred presence or personage in the universe that might be viewed as “contractual”. Cultural groups may or may not have sacred places and objects, but in all of them the foundations of rules of conduct and proper relationships to persons, animals and things cultural or natural, reside in the contract with the sacred power. The contract includes agreement about good and evil (crime and punishment), group membership (allowed and disallowed, with exclusionary provisions), marriage rules, sexual taboos, sexual access and denial, punitive measures meted out through illness, death, or the many forms of loss, as well as some advice for conflict resolution (1).
All this would seem to argue for a universal recognition that tenets of law are not evidence-based but rather appear to be a common sense approach; thus, truths about inter-personal or inter-class relations are never “self-evident”, even though we may choose to “hold” that they are. From any such evidentiary assertion, corollaries flow - always justified by the first assertion and basic belief. These having been established, we then find justification in “legal precedent”, creating a self-contained structure of ideologically driven articles of faith translated into social action. These will be “held” until there is cultural pressure to revise what we hold to be self-evident (2). This does not mean, however, that such a belief system is less “real” than empirical truths. For beliefs determine behavior and have the impelling force of a “reality” constituted of cascades of proof and validity, and because outcomes are usually predictable, beliefs have a good chance of being reliable.
A legal system can be thought of as a mathematical system, in the sense that we speak in terms of postulates and premises. In practice, a legal system is nonmathematical, for the most part, often ignoring strict adherence to precedent, postulates, and principles. Concepts of efficacy, efficiency, implications for administration of justice and, most fundamentally, social beliefs, political exigency, and chance (choices of judges and juries) come into play, overwhelming the structural framing of problems and their solutions.
Unable to display preview. Download preview PDF.