private law categories of property, contract, and tort perform the same social function.
Mythologies are structures of words and images that portray people, institutions, and events in ways that mask an underlying reality. In the days when France used the guillotine, the executioner cried, just after the blade dropped, “Au nom du peuple français, justice est faite.” In the name of the French people, justice is done. This cry had no rational relation to discourse about what is fair, right, decent, or in accord with evidence about conduct. “Justice” was a name given to an event, to elevate the act of killing into an acceptable and rational process.
To proclaim “Justice” committed two solecisms. First, it appropriated justice as the exclusive property of the state. Second, it assigned a fictitious value to the word, invoking a mythology of the universality of language.
In the United States, there is a department that calls itself Justice. Colloquially, we use the term “criminal justice system,” as though we are invited to ignore a system of endemic unfairness that has produced mass incarceration.
In 1957, the French writer Roland Barthes published a series of essays, under the title Mythologies. The book appeared in English under the same title in 1972.
Barthes’s essays describe the ways in which the state, the media, and private power wielders deploy verbal and pictorial images. Barthes writes of seeing a magazine cover in the late 1950s showing a black soldier saluting the French flag. At that time, France was engaged in brutal suppression of anti-colonial uprisings in Africa and had recently lost the decisive battle of Điện Biên Phû in Vietnam. The photograph sends the mythological message that even this soldier, and by extension most people of color, support colonialism.1
Another of Barthes’s essays discusses the trial of a semi-literate octogenarian French goatherd for killing an English tourist. The defendant did not possess the culpable mental state that the law’s machinery attributed to him. But, as Barthes observed:
Periodically, some trial, and not necessarily fictitious like the one in Camus’s The Stranger, comes to remind you that the Law is always prepared to lend you a spare brain in order to condemn you without remorse, and that, like Corneille, it depicts you as you should be, and not as you are.
The nineteenth-century French artist Honoré Daumier penned a cartoon of a judge facing a defendant who had stolen food. “You were hungry?” the judge declaims. “You were hungry? I myself am hungry three times a day, and I don’t steal for that!”
Samuel Butler noted that parishioners in his church would be equally horrified at seeing the Christian religion doubted and at seeing it practiced.
In the United States, mythologies based on racial, ethnic, gender, and religious stereotypes drive discussions about social policy. Tom Paxton wrote of mythologies in the song “What Did You Learn in School Today?”: “I learned that Washington never told a lie / I learned that soldiers seldom die …”
We use mental shortcuts to get through our daily lives. We may know how to fry an egg. The routine is semi-automatic. We don’t think about every step. I need not think through all the decisions I make when crossing the street: Am I at the corner, is the WALK sign illuminated, are there cars coming, how high is the curb, and so on. I go through a series of internalized reactions, actions that “go without saying.” In New York City, of course, to hell with all that, I just barge across the street like everybody else.
Some mental shortcuts are stereotypes. We have a bad feeling about certain people based on their race, religious practices, choice of clothes, or any of a hundred different things. If I am in lower Manhattan, near the headquarters of Goldman Sachs, and I see a well-dressed white man coming out of the building, I will cross the street to get away from him. I fear he will rob me of my pension.
Many of these stereotypes are, when viewed rationally, indefensible. Yet, when they are challenged, we are likely to hold on to them more closely. This sort of thing is sometimes called “confirmation bias.” When we hold on to a position or idea in the face of contrary evidence, social science research terms this the “backfire effect.”2
An impression is our “take” on something we see. Claude Monet was an “impressionist” painter. He painted the same scene, for example, the Rouen Cathedral, over and over. Each of those paintings gives us a different impression of the same scene.
All of these terms, which I often use interchangeably, refer to ways of seeing and interpreting the world around us. As I say, most of them are harmless and even useful ways of getting through the day. Some, however, are ways we fool ourselves, or permit ourselves to be fooled, about what is really going on. William James said, “A great many people think they are thinking when they are merely rearranging their prejudices.”
In human rights litigation, and indeed in all law practice, we must deconstruct the myths that have grown up around our clients, the groups to which they belong, and the conduct attributed to them. Based on our client’s race, social class, sexual orientation, or some other characteristic, the state rationalizes its treating our client especially harshly.
When we litigate cases, we confront not only the evidence adduced and the legal principles being argued, but also the socially, culturally, and historically determined attitudes of judges and jurors. In a jury trial, we use voir dire to uncover those. We look up the biographies and prior decisions of judges.
I am a human rights lawyer. My most important task is to expose, analyze, and combat the mythologies that dominate legal ideology. These mythologies form a systematic justification for the way that state power and private economic power is wielded. The essays in this book focus on how mythologies may be understood and exposed. This “myth-busting” lies at the heart of the lawyer’s work. We undertake to represent clients who are marginalized. To borrow a phrase from artist and art critic John Berger, we mediate between what is given and what is desired.
The essays in this collection address five groups of mythologies that help to rationalize the present system of social relations: racism, criminal justice, free expression, worker rights, and human rights. They deconstruct what the state and the wielders of monopoly power tell us, in order to seek out what is really going on.
Throughout these essays, I repeat a theme: the law is not what it says, but what it does. What “it does” is so often based on assumptions that time and the tide of events have shown to be false. Karl Marx wrote, “The law shows its a posteriori to the people, as God to his servant Moses.”3 As Anatole France famously wrote: “‘The majestic equality of the laws, which forbid the rich as well as the poor to sleep under bridges, to beg in the streets and to steal bread.”
The “law” is itself an ideology, constructed to define, defend, and enforce a system of social relations. Its mythologies are enshrined as precedents. Jonathan Swift wrote in Gulliver’s Travels:
It is a maxim among these lawyers, that whatever hath been done before may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. These, under the name of precedents, they produce as authorities, to justify the most iniquitous opinions; and the judges never fail of decreeing accordingly.
If we focus only on what “the law” says, we catch ourselves saying that “the law has evolved,” which is like saying that “the market has crashed,” or “the bank has failed,” or “the car did not stop at the red light.” This formulation reifies and mystifies legal rules, and if accepted leads to alienation and disempowerment. The law is not the juristic incarnation of Adam Smith’s “invisible hand.” People operate it. Other people
