Much that is happening in the spectacle of America’s legal-political life today reminds me of some pages in Johan Huizinga’s great book Homo Ludens: A Study of the Play-Element in Culture (1938). In a chapter on “Play and Law,” Huizinga distinguishes the unfolding of legal proceedings in advanced cultures, where strict adherence to process and abstract notions of right and wrong prevail, from the situation in more primitive cultures, where the ultimate criterion is victory. “Turning our eyes from the administration of justice and highly developed civilizations,” Huizinga writes, “to that which obtains in less advanced phases of culture, we see that the idea of right and wrong, the ethical-juridical conception, comes to be overshadowed by the idea of winning and losing, that is, the purely agonistic conception. It is not so much the abstract question of right and wrong that occupies the archaic mind as the very concrete question of winning or losing.”
