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Abstract:
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"This paper, examining connections between myth, law and common property governance, is presented in two parts. The first begins from a proposition widely accepted within legal anthropology; that myth is a source of law in many traditional societies. Bronislaw Malinowski provides the classic statement: 'Myth fulfils . . . an indispensable function: it expresses, enhances and codifies belief; it safeguards and enforces morality; it vouches for the efficiency of ritual and contains practical rules for the guidance of man. Myth is thus a vital ingredient of human civilisation; it is not an idle tale, but a hard-worked active force . . . a pragmatic charter of primitive faith and moral wisdom.'
"Without denying the social and economic changes of the modern era, sacred cultural narratives continue to be valued highly in many localities, linking specific groups of people in oral tradition to specific land and marine scapes. Among the many interconnected social and spiritual functions performed by traditional mythologies is frequently the underpinning of norms of access to and distribution of, and perhaps for the conservation of, natural resources. One result of this is that in many instances of common property governance there are ancient mythologies accompanying local perceptions of what constitutes legitimate authority. These themes are discussed in the first part of this paper. The discussion is augmented by the example of Pohnpei in the Federated States of Micronesia, a case study illustrating connectivity between local mytho- history, traditional authority, and sustainable common property governance.
"Much common property literature focuses upon appropriate design of resource governance institutions - this is a logical process, but the logic is responsive both to political imperatives and to (visible and invisible) cultural universes. In this sense the material in the first section reminds a common property readership to remain sensitised to the cultural embeddedness of institutions.
"A heightened sensitivity to cultural embeddedness of environmental governance institutions also invites reflection upon what that may mean in terms of understanding contemporary discourses now dominant in law. For adherents to these the question doesn't arise because any form of authority based, even in part, in mythological narrative should by definition be condemned to an irrational and irrelevant past. That contemporary societies differ fundamentally in this respect is supposedly among their self-defining features; modern law in particular, has no need of myth. 'The very idea of myth typifies 'them' - the savages and ancestors 'we' have left behind'. In contrast, critical theorists for some decades have suggested otherwise; a recurring theme of this critique is that we seek transcendence in denying the possibility of transcendence, that ours is the myth of mythlessness.
"In turning these suggestions to the present topic, the second part of this paper inquires whether, and in what respects, contemporary environmental law and governance can be described as having a basis in 'myth'. In particular it describes some respects in which 'The Tragedy of the Commons' (the Tragedy) may be regarded as a founding myth of environmental law and governance, and the implications thereof."
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