The Invention of Legal Primitivism
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Steven Wilf
This Article addresses a different sort of legal transplant — one in which outside legal doctrines are imported in order to be cabined, treated as normative counterpoints, and identified as the legal other. Legal primitivism is a kind of anti-transplant. It heightens the persistent differences between a dominant legal system and its understanding of primitive rules. An often ignored legal literature depicting legal primitivism emerged in the second half of the nineteenth century and in the early twentieth century. Mapping the differences between America’s modern legal system and its antecedents, this immense literature, which included works by OliverWendell Holmes, James Coolidge Carter, and John Henry Wigmore, described an archaic legalism which sometimes belonged to tribal societies, and sometimes was simply conjured out of thin air. Exploring the project of constructing geographies of legal knowledge assists in our understanding of American law in a period of significant change. What elements of primitive law were valorized? Which were seen as archaic or repugnant? And what was the purpose of constructing a legal doppelgänger? By examining these cultural negotiations, and holding legal primitivism up as a mirror to modern law, it is possible to uncover the anxieties of legal modernism.
©2011 Walter de Gruyter GmbH & Co. KG, Berlin/Boston
Articles in the same Issue
- Article
- Introduction
- The Concept of Law: A Western Transplant?
- Transplantation and Mutation in Anglo-American Trust Law
- Transplants and Timing: Passages in the Creation of an Anglo-American Law of Slavery
- Deciding Against Conciliation: The Nineteenth-Century Rejection of a European Transplant and the Rise of a Distinctively American Ideal of Adversarial Adjudication
- The Invention of Legal Primitivism
- Race, Marriage, and Sovereignty in the New World Order
- Constitutional Transplants
- Some Reflections on the Transplantation of British Company Law in Post-Ottoman Palestine
- Jefferson Goes East: The American Origins of the Israeli Declaration of Independence
- Argonauts of the Eastern Mediterranean: Legal Transplants and Signaling
- American Moment[s]: When, How, and Why Did Israeli Law Faculties Come to Resemble Elite U.S. Law Schools?
- Foreign Law Between "Grand Hazard" and Great Irritation: The Bulgarian Experience After 1878
- Legal Transplants and the Frontiers of Legal Knowledge
- Western Legal Imperialism: Thinking About the Deep Historical Roots
Articles in the same Issue
- Article
- Introduction
- The Concept of Law: A Western Transplant?
- Transplantation and Mutation in Anglo-American Trust Law
- Transplants and Timing: Passages in the Creation of an Anglo-American Law of Slavery
- Deciding Against Conciliation: The Nineteenth-Century Rejection of a European Transplant and the Rise of a Distinctively American Ideal of Adversarial Adjudication
- The Invention of Legal Primitivism
- Race, Marriage, and Sovereignty in the New World Order
- Constitutional Transplants
- Some Reflections on the Transplantation of British Company Law in Post-Ottoman Palestine
- Jefferson Goes East: The American Origins of the Israeli Declaration of Independence
- Argonauts of the Eastern Mediterranean: Legal Transplants and Signaling
- American Moment[s]: When, How, and Why Did Israeli Law Faculties Come to Resemble Elite U.S. Law Schools?
- Foreign Law Between "Grand Hazard" and Great Irritation: The Bulgarian Experience After 1878
- Legal Transplants and the Frontiers of Legal Knowledge
- Western Legal Imperialism: Thinking About the Deep Historical Roots
