Still Not Being Modern: Law and the Insistence of Myth

Abstract

Nietzsche’s supremely sane, if overworked, madman provides the mythic orientation for this article. It is ‘we’ who have killed God, he reveals, and as a result we are left ‘straying as through an infinite nothing’, and left having to invent new ‘sacred games’. These, however, are a diversity and diversity does not, and cannot, take the place of the transcendent and all-encompassing singularity that was the occidental deity. With the supposedly secular Occident unable to embed its all-surpassing coherence in a positive transcendence, resort is had to a negative universal reference unfolded by way of a myth of origin. That myth configures a cohering identity of an occidental modernity formed as the antithesis yet comprehension of designated ‘others’. The article then turns to what this myth imports for our understanding of ‘modern’ law, matching such law to the generative dimensions of myth. What could be called the law implicate gives effect to mythic determinacy. Yet, law like myth has to be adaptively responsive, and in this it responds integrally to Nietzsche’s vision of that unlimited possibility made possible with the death of God.