Abstract

A startling aspect of H.L.A. Hart's The Concept of Law is just how profoundly it rests on imaginary anthropology. Hart suggests that the development of "secondary" rules of change, recognition, and adjudication to supplement "primary," or substantive, rules of law is the process by which primitive societies evolve into modern ones. Hart's founding stories are myths in two senses of the word. First they are literally false. They are not based on any serious anthropological study of archaic or primitive societies. Rather, Hart posits a hypothetical pre-modern society in order to define modernity negatively. In other words, primitive society is nothing but the lack of those traits Hart believes are characteristic of civilization. Second, Hart's myths, like all myths, articulate a truth beyond literal truth. Modernity is rationalized because it supplies that which primitive society supposedly lacks. The status quo, despite its flaws, is justified because it gives us the gift of the rule of law. It has been suggested that Hart's mythography fits squarely within classical liberal political philosophy and jurisprudence that relies on a pseudo-scientific evolutionary theory purporting to explain how simplistic archaic cultures were overtaken by increasingly more complex, sophisticated and superior forms. I wish to point out another surprising antecedent to Hart. Hart's myths bear an uncanny resemblance to those told by a theorist who sought to undermine the vision of the rational, autonomous individual that underlies the entire Enlightenment project. This is Sigmund Freud, whose myths of the creation of law and culture are set forth in Totem and Taboo and in Moses & Monotheism.