Abstract

Can mythology be a form of critical theory in the service of right? From the standpoint of an Enlightenment tradition, the answer is no. Mythology is characterised by irrationality, and works to mystify reality, whilst critical theory is set against the irrational, its entire force directed at demystifying reality. In a post-Enlightenment tradition, reason, including critical reason, may take mythological form—indeed, there is identity as much as non-identity between the two forms, a mimetic relationship in which the rational cannot be freed of the mythological any more than myth can stand outside reason. However, the work of critical theory remains essentially the same. Whether in the form of rational myth or mythological reason, critical theory must remain in the service of right in the sense of ‘the true’, and thus remains an enlightenment project. In contrast, the aim of this essay is to put forward a model of critical theory that is sympathetic with mythology, not only in its form, but also in the work that it does, which is not in the service of the true but of the good. That model is Peter Fitzpatrick’s seminal work of jurisprudence, The Mythology of Modern Law. After addressing how Fitzpatrick’s Mythology is in the form of a negative mythology, the essay elaborates the critical work of such mythological critical theory. In the case of Mythology, that work involves creating the conditions for a mythological legal pluralism, through the decolonisation of law.