"Modernism is the United States Supreme Court’s response to the high-water mark of formalism denoted by Lochner v. New York. It is the trumping of doctrinal and black letter approaches to cases by bands of legal realists at Columbia and Yale law schools. Modernism is the undoing of the shackles of formal legal analysis, the burying of the dead hand of the past, the recognition that law is largely functional — and therefore the moment when autonomous judges, scholars, and public-minded attorneys reconstruct law in the image of society. It is a forward-looking march to the future. Since no credible story of transformation can be so sudden, there are transition figures in this tale such as Roscoe Pound and Wesley Hohfeld. Oliver Wendell Holmes is a favorite, and it has become something of a cottage industry to identify his conversion on the road to Damascus, which somehow also turns out to be the Path of the Law."
I quote the absolutely delicious opening passage from Steven Wilf’s recently published article The Invention of Legal Primitivism, 10 Theoretical Inquiries in Law 485-509 (2009). Nothing but a quote could capture the flavor of this original and provocative essay. Its host journal, published by the Cegla Center for Interdisciplinary Research of the Law, of the Buchmann Faculty of Law at Tel Aviv University, is the most cited journal of theory and jurisprudence published in English outside the United States. But the article’s strength rests in perspicacity not simply provenance.
Steven tells a largely ignored story within intellectual history centering on the period between “the 1861 publication of Henry Sumner Maine’s Ancient Law and Karl Llewellyn’s and E. Adamson Hoebel’s The Cheyenne Way, which appeared in 1941." During this time, a period most of us recognize as the dawning age of Modernism (see above), American legal scholars, Steven shows, devoted great efforts to identifying the roots of law in much earlier periods. In a nutshell, he demonstrates how scholars of the period frequently referred to primitive law as a point of comparison from which to evaluate the changing legal culture Americans were then experiencing. His tour takes us through the works not only of Sumner and Llewellyn but also, to name a few, James Coolidge Carter, Guy Carleton Lee and John Henry Wigmore.
Unsurprisingly, Steven identifies tensions and even contradictory strands within these appeals to “legal primitivism.” Scholars thrilled about the increasing systematization and classification brought to law by modern sensibilities could point to the primitive, now discarded, legal systems as chaotic and reflective of brutish or childish civilizations. In contrast, scholars wary of growing efforts to codify and rationalize the law, could point to the organic role of primitive custom as exemplifying something important that modern developments put in peril. Either way, Steven shows convincingly that scholarly focus on “legal primitivism” played a key role in the intense debates that accompanied the rise of the modern period. And in his tale, the dominant strand is represented by those who use primitive legal systems as a foil to extol modern systems by way of comparisons. It’s a fascinating story. Congratulations Steven.
