The Invention of legal primitivism

Theoretical Inquiries in Law

Volumn 10, Issue 2, 2009, Pages

  Wilf, Steven ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 68349133782     PISSN: None     EISSN: 15653404     Source Type: Journal    
DOI: 10.2202/1565-3404.1223     Document Type: Article

References (69)

1. MORTON J. HORWITZ,THE TRANSFORMATION OF AMERICAN LAW 1870-1960: THE CRISIS OF LEGAL ORTHODOXY (1992). My chronology in this essay roughly follows that used in WILLIAM M. WIECEK,THE LOST WORLD of CLASSICAL LEGAL THOUGHT:LAW AND IDEOLOGY IN AMERICA 1886-1937 (1998). As here empl , the modern t enterprise includes both the construction of a jurisprudence with claims to being apolitical, objective, and quasi-neutral through its reliance upon a dense, and increasingly systematized, doctrine, and proto-realist and realist critiques of what has been called legal orthodoxy.
2. See especially ROBERT W. GORDON,THE LEGACY OF OLIVER WENDELL HOLMES, Jr. (1992);
3. STEVEN J. BURTON,THE PATH OF tHE LAW AND ITS INFLUENCE (2000);
4. Neil Duxbury, The Birth of Legal Realism and the Myth of Justice Holmes,20 ANGLO-AM.L.REV. 81 (1991). For the situating of Holmes' psychological posture away from his role as a legal realist precursor, see Anne Dailey, Holmes and the RomanticMind,48 DUKEL.J. 429 (1998). Thomas Grey, Langdell's Orthodoxy,45 U. PITT.L.REV. 1, 5 (1983) points out that for at least a century there has been a steady polemic against "mechanical jurisprudence."
5. RICHARD A. POSNER,FRONTIERS OF LEGAL THEORY 31-61 (2001). On the legal realist project of enlisting social science tools, see JOHN HENRY SCHLEGEL,AMERICAN LEGAL REALISM AND EMPIRICAL SOCIAL SCIENCE (1995).
6. DAVID LUBAN,LEGAL MODERNISM 51-92 (1994).
7. David Trubek, Where the Action Is: Critical Legal Studies and Empiricism,36 STAN.L.REV. 575 (1984) identifies critical legal studies as founding its critique upon indeterminacy, antiformalism, contradiction, and marginality. According to Mark Tushnet, it challenges the formalism inherent in liberal political theory. Mark Tushnet, Perspectives on Critical Legal Studies: Introduction,52GEO.WASH.L. REV. 239, 239-40 (1984).
8. in terms of periodization, this time frame encompasses the period of greatest influence for primitive law upon legal studies. Of course, modern anthropological investigations into the primitive would continue with seminal work on the primitive mind by Franz Boas, Lucien Levy-Bruhl, Malinowski, and others.
9. Among their works are JOHANN JAKOB BACHOFEN, DAS MUTTERRECHT (Basel, Benno Schwabe 1891) (1861); Josef Kohler, Zur Urgeschichte der Ehe: Totemismus, Grupenehe, Mutterrecht,12 ZEITSCHRIFT FUR VERGLEICHENDE RECHTSWISSENSCHAFT 187 (1897); J.M. MCLENNAN,P RIMITIVE MARRIAGE:AN INQUIRY iNTO tHE ORIGIN oF tHE FORM oF CAPTURE iN MARRIAGE CEREMONIES (Edinburgh, A & C Black 1865); and LEWIS H. MORGAN,ANCIENT SOCIETY: RESEARCHES iN tHE LINES oF HUMAN PROGRESS fROM SAVAGERY THROUGH BARBARISM tO CIVILIZATION (New York, H. Holt & Co. 1877). On German legal primitivism, see Rudiger Schott, Main Trends in German Ethnological Jurisprudence and Legal Ethnology, in 1FOLK LAW:ESSAYS iN tHE THEORY aND PRACTICE oF LEX NON SCRIPTA 201 (Alison Dundes Renteln & Alan Dundes eds., 1994). While this literature includes strong German and French sources (such as writings by Emile Durkheim and Marcel Mauss), we will focus on American sources with occasional reference to a broader Anglo-American tradition of legal primitivism.
10. GUY CARLETON LEE,HISTORICAL JURISPRUDENCE:AN INTRODUCTION tO tHE SYSTEMATIC STUDY oF tHE DEVELOPMENT oF LAW 6 (1900).
11. ALBERT KOCOUREK &JOHN H. WIGMORE,PRIMITIVE aND ANCIENT LEGAL INSTITUTIONS (1915). It is important to ask why the rendering of the savage was so persuasive. For a similar approach, see Marilyn Strathern, Out of Context: The Persuasive Fictions of.Anthropology,28CURRENT ANTHROPOLOGY 251 (1987).
12. Henry E. Davis, Primitive Legal Conceptions in Relation to Modern Law, in REPORT oF tHE TWENTIETH ANNUAL MEETING oF tHE AMERICAN BAR ASSOCIATION 469 (Philadelphia, Dando 1897).
13. MARIANNA TORGOVNICK,GONE PRIMITIVE: SAVAGE INTELLECTS,MODERN LIVES 8 (1990). Primitivism suggests both origins and the uncivilized, and, as we shall see, both of these meanings permeated the legal primitivism project. Primitivism has different valences depending upon the genre where it develops as a concept - art, anthropology, literature - and I will allow the legal sources referenced in this essay to speak for themselves. See SUSAN HILLER, THE MYTH oF PRIMITIVISM: PERSPECTIVES oN ART 55-57 (1991) for a definition of primitivism for painting and drawing. For a different reading of modern and savage in a legal context, see PETER FITZPATRICK, MODERNISM aND tHE GROUNDS of Law 39-63 (2001). The term primitive has been seen as disparaging, and therefore has fallen into disfavor among many anthropologists. For an early critique, see Sol Tax, "Primitive" Peoples,1 CURRENT ANTHROPOLOGY 441 (1960).
14. ALEXANDER GOLDENWEISER,ANTHROPOLOGY:A N INTRODUCTION tO PRIMITIVE CULTURE 47 (1937).
15. Jacob Henry Landman, Primitive Law, Evolution, and Sir Henry Sumner Maine,28 MICH.L.REV. 404, 408 (1930).
16. My idea of a gesture includes performative aspects of identifying a shift in jurisprudential approaches. In a somewhat similar sense, Neil Duxbury has written of the creation of a "mood." NEIL DUXBURY,PATTERNS oF AMERICAN JURISPRUDENCE 65-71 (1995).
17. It is difficult to know precisely how often the turn to legal primitivism valorized the past or, instead, rejected earlier norms, although my impression is that transcending earlier legal thinking outweighed borrowing. My point is that legal primitivism was a tableau, and many different approaches were taken toward this broad range of material. Legal primitivism was part of various social and aesthetic movements in the late nineteenth-century, which included primitivism in art and literature, and part of an increasingly sophisticated discourse of social criticism. For the latter, see T.J. JACKSON LEARS,NO PLACE oF GRACE: ANTIMODERNISM aND tHE TRANSFORMATION oF AMERICAN CULTURE 1880-1920 (Univ. of Chi. Press 1994) (1981).
18. see, for example, the construction of a questionnaire as a research tool. John Macdonnell, Primitive Laws and their Investigation: A Suggestion,8J.SOC'Y COMP.LEGIS. 104 (1907).
19. During his Indian period, Maine supported the application of Indian legal norms under the umbrella of the colonial administrative apparatus, despite the fact that many of these were considered by English contemporaries to be morally repugnant. Kenneth R. Bock, The Moral Philosophy of Sir Henry Sumner Maine,37J.HlST. IDEAS 147, 149-50 (1976). Morgan became fascinated with New York Native- American ethnography as a young man. in Rochester, he became part of a literary club that sought to model itself on the League of the Iroquois. Alexander Spoehr, Lewis Henry Morgan and His Pacific Collaborators, 125 PROC.AM.PHIL.SOC'Y 449, 449-50 (1981). John Wigmore's interest in primitive law may have been related to his three-year stay in Japan when he worked to establish a Japanese law school on the Harvard model. Annelise Riles, Encountering Amateurism: John Henry Wigmore and the Uses of American Formalism, in RETHINKING tHE MASTERS oF COMPARATIVE LAW 94 (Annelise Riles ed., 2001). Llewellyn, on the other hand, had a strong personal interest in scandinavian literature, which may have shaped his turn to the primitive. Peter Dinunzio, Elinor Kim & Robert Whitman, Karl N. Llewellyn: How Icelandic Saga Literature Influenced the Scholarship of an American Realist, 39 CONN.L.REV. 1923, 1950 (2007).
20. see, for example, the division of law into law which progresses and law (belonging to more primitive societies, the chinese and islamic countries) which does not progress - with the imputation of the West as the engine of moral change. DEWITT CLINTON ALLEN,THE EVOLUTION oF oUR SYSTEM oF LAW (St. Louis, Continental Printing 1892). Perhaps the most important discussion of colonial discourse in American legal history is christopher Tomlins, In a Wilderness ofTigers: Violence, the Discourse ofEnglish Colonizing, and the Refusals ofAmerican History,4 THEORETICAL INQUIRIES L. 451 (2003); see also James Q. Whitman, Western Legal Imperialism: Thinking About the Deep Historical Roots,10 THEORETICAL INQUIRIES L. 305 (2009).
21. EDWARD B. TYLOR,RESEARCHES iNTO tHE EARLY HISTORY oF MANKIND aND tHE DEVELOPMENT oF CIVILIZATION 279 (Boston, Estes & Lauriat 1878).
22. On the methodology of the legal history of the imagination, see STEVEN WILF,THE LAW BEFORE tHE LAW, at vii-xii (2008).
23. WALTER BENJAMIN,THE ARCADES PROJECT 461 (Rolf Tiedemann ed., 1999).
24. THOMAS HARDY,TESS oF tHE D'URBERVILLES 160 (New York, Harper & Bros. 1891).
25. The fact that legal primitivism has not previously been discussed as a modern jurisprudential enterprise suggests how arcane its subject matter seems to legal academics. There has been research drawing upon the Darwinian strand of legal primitivism, see the discussion below, and upon its contributions to the historical origins of modern anthropology. In some ways, legal primitivism fits the category of invented traditions since so many of its claims were constructed as if they were rooted in primeval history. THE INVENTION oF TRADITION (Eric Hobsbawm & Terrence Ranger eds., 1992).
26. JAMES COOLIDGE CARTER,LAW:I TS ORIGIN,GROWTH, aND FUNCTION 5 (1907); Lewis A. Grossman, Langdell Upside-Down: John Coolidge Carter and the Anti- Classical Jurisprudence of Anti-Codification,19 YALE J.L. & HUMAN. 149 (2007).
27. For a broader examination of mid to late nineteenth-century investigations into the primitive, see ADAM KUPER,THE INVENTION oF PRIMITIVE SOCIETY: TRANSFORMATIONS oF aN ILLUSION (1988); GEROGE W. STOCKING,JR., VICTORIAN ANTHROPOLOGY (1987); and HENRIKA KUKLICK,THE SAVAGE WITHIN:THE SOCIAL HISTORY oF BRITISH ANTHROPOLOGY 1885-1945 (1991). In the legal context, custom was established as an independent realm for engaging with complex social phenomena. See Kunal M. Parker, Context in History and Law: A Study of the Late Nineteenth-Century American Jurisprudence of Custom,24 LAW & HIST.REV. 473,481 (2006).
28. HENRY SUMNER MAINE, ANCIENT LAW 4-5 (J.M. Dent & Sons 1917) (1861).
29. Id. at 2. The role of some strands of legal primitivism in establishing continuity, promoting the valorization of common or customary law, anchoring legal traditions in firmly rooted origins, and situating formative periods of change in the distant past might all fit within what Morton Horwitz has called the conservative tradition of legal history. However, as we shall see, legal primitivism was also the source of Friedrich Engels' radical conceptions of the family. Morton J. Horwitz, The Conservative Tradition in the Writing of American Legal History,17AM. J.LEGAL HIST. 275 (1973).
30. HENRY SUMNER MAINE,VILLAGE COMMUNITIES iN tHE EAST aND WEST 17 (London, J. Murray 1887) (1871).
31. MAINE, supra note 26, at 2-4.
32. in a pithy summary of this line of thinking, william seagle, a late author in the primitivism project, writes "custom is king." WILLIAM SEAGLE, THE QUEST fOR LAW 27 (1941).
33. MAINE, supra note 26, at 31-32.
34. E. SIDNEY HARTLAND, PRIMITIVE LAW 8 (1924).
35. Id. at 138.
36. Id. at 7, 79. For a Progressive Era use of legal primitivism to suggest the persistence of the folk-moot ideal of direct democracy, see CHARLES SUMNER LOBINGIER, THE PEOPLE'S LAW OR POPULAR PARTICIPATION iN LAW-MAKING fROM ANCIENT FOLK-MOOT tO MODERN REPRESENTATION (1909).
37. J.H. Driberg, Primitive Law in East Africa,1 AFRLCA:J. INT'L AFR.INST. 63 (1928).
38. HARTLAND, supra note 32, at 6.
39. LEE, supra note 8, at 1.
40. Id. at 4-5.
41. M.F. MORRIS, THE HISTORY oF tHE DEVELOPMENT oF LAW 34-35 (1909).
42. WILLIAM ROBERTSON SMITH, KINSHIP aND MARRIAGE iN EARLY ARABIA 65 (Cambridge, Cambridge Univ. Press 1885).
43. William I. Thomas, The Relation of Sex to Primitive Social Control,3AM.J.Soc. 754, 765 (1898).
44. THE NATIVE TRIBES oF NORTH-EASTERN RHODESIA:THEIR LAWS aND CUSTOMS 9 (John Charles Codrington Coxhead ed., 1914).
45. Morgan, supra note 7, at 345. Morgan's interconnections between property and social organization have been particularly influential for Marxist thought since their use in Friedrich Engels,Origin of the Family,Private Property, and the State (1884). Marx wrote extensive reading notes on Morgan's Ancient Society. William H. Shaw, Marx Morgan,23HlST.&THEORY 215 (1984); Donald R. Kelley, The Science of Anthropology: An Essay on the Very Old Marx,46J.HlST. Ideas 245, 245 (1984). On Morgan as the founder of cultural anthropology, see THOMAS R. TRAUTMANN, LEWIS HENRY MORGAN aND tHE INVENTION oF KINSHIP (1987); CARL RESEK, LEWIS HENRY MORGAN:AMERICAN SCHOLAR (1960); and BERNARD J. STERN, LEWIS HENRY MORGAN: SOCIAL EVOLUTIONIST (1931).
46. John Mclennan,Studies in Ancient History 138 (London, MacMillan new ed. 1886); JOHN mCLENNAN, PRIMITIVE MARRIAGE : AN INQUIRY iNTO tHE ORIGIN oF tHE FORM oF CAPTURE iN MARRIAGE CEREMONIES 11, 90-95 (Edinburgh, A & C Black 1865). G. Stailand Wake, The Primitive Human Horde, 17J.Anthropological Inst.Gr.Brit.&Ir. 276, 276 (1888) identifies marriage structure as an indicator of primitivism. on the sexual politics of primitivism, see Elizabeth Fee, The Sexual Politics of Victorian Social Anthropology, 1 FEMINIST STUD. 23 (1973). More generally, on the underside of late nineteenth-century sexuality, see CAROLL SMITH-ROSENBERG, DISORDERLY CONDUCT:VISIONS oF GENDER iN VICTORIAN AMERICA (1986).
47. CHARLES FRANKLIN THWING & CARRIE F. BUTLER THWING,THE FAMILY: AN HISTORICAL aND SOCIAL STUDY 10-16 (Lothrop, Lee & Shepard rev. & enl. ed. 1913).
48. T.E. Cliffe Leslie, Preface to EMILE DE LAVELEYE,PRIMITIVE PROPERTY, at xix (London, MacMillan 1878).
49. Oliver Wendell Holmes, Jr., Primitive Notions in Modern Law (pt. 1), 10 AM.L. REV. 422 (1876), reprinted in THE FORMATIVE ESSAYS OF JUSTICE HOLMES: THE MAKING OF AN AMERICAN LEGAL PHILOSOPHY 129 (Frederic Rogers Kellogg ed., 1984). Holmes' conception is clearly influenced by EDWARD B. TYLOR,PRIMITIVE CULTURE (J.P. Putnam's Sons 6th ed. 1920) (1871), where it is argued that animism, the anthropomorphic notion that inanimate objects have some of the qualities of living beings, is central to primitive cosmological conceptions. Holmes would continue his research into primitive law by examining the underlying connection between land transfer and the vesting of personal rights upon another. Oliver Wendell Holmes, Jr., Primitive Notions in Modern Law (pt. 2), 11 AM.L.REV. 641 (1877). See G. EDWARD WHITE, JUSTICE OLIVER WENDELL HOLMES: LAW AND THE INNER SELF 131-34 (1993).
50. -4 JOHN DEWEY, Anthropology and Law in John Dewey, in THE EARLY WORKS oF JOHN DEWEY 1882-1894, at 37 (Jo Ann Boydston ed., 1971).
51. Brian Smith, Maine's Concept of Progress,24J.HlST.lDEAS 404, 407-08 (1963).
52. JAMES E. HERGET, AMERICAN J URISPRUDENCE 1870-1970: A HISTORY 117-46 (1990); Herbert Hovenkamp, Evolutionary Models in Jurisprudence,64 TEX.L. REV. 645 (1985). By focusing on the Darwinian aspects of the legal primitivism literature, these works have ignored much of the larger genre. See also E. Donald Elliot, The Evolutionary Tradition in Jurisprudence,85 COLUM.L. REV. 38 (1985).
53. PETER STEIN, LEGAL EVOLUTION: THE STORY oF aN IDEA 122-29 (1980).
54. See, ., HENRYSCOTT,THEE VOLUTIONOFLAW:AHLSTORICALR EVIEW39(1908).
55. John Henry Wigmore, Problems of the Law's Evolution,4Va.L. REV. 247 (1917), reprinted in JOHN HENRY WIGMORE, PROBLEMS oF LAW:ITS PAST,PRESENT, aND FUTURE 1 (1920).
56. BRONISLAW MALINOWSKI, CRIME aND CUSTOM iN SAVAGE SOCIETY 1-5 (1926).
57. Id. at 121.
58. Id. at 100.
59. Bronislaw Malinowski, A New Instrumentfor the Interpretation of Law - Especially the Primitive,51 YALEL.J. 1236 (1942).
60. KARL LLEWELLYN & E. ADAMSON HOEBEL,THE CHEYENNE WAY:CONFLICT aND CASE LAW iN PRIMITIVE JURISPRUDENCE 289,339-40 (1941); see WILLIAM TWINING, KARL LLEWELLYN aND tHE REALIST MOVEMENT 153-69 (1973).
61. N.E.H. HULL, ROSCOE POUND AND KARL LLEWELLYN:SEARCHING FOR AN AMERICAN JURISPRUDENCE (1997); Malinowski, supra note 57, at 1238. By contrast, others saw the rules of archaic law as being "in the highest degree formal." See Roscoe Pound, The End of Law as Developed in Legal Rules and Doctrines,27 HARV.L.REV. 195, 198 (1914).
62. E. ADAMSON HOEBEL,THE POLITICAL ORGANIZATION aND LAW-WAYSOFTHE COMANCHE INDIANS 48 (Memoirs of the Am. Anthropological Ass'n No. 54, 1940). See William L. Twining, Two Works of Karl Llewellyn (pt. 2), 31 MOD.L.REV. 161, 167 (1968). Assaf Likhovski has argued that those advocating the study of informal law often emerged from the periphery of legal systems. Assaf Likhovski, Czernowitz, Lincoln, Jerusalem, and the Comparative History of American Jurisprudence,4 THEORETICAL INQUIRIES L. 621 (2003). I have tried to show that the periphery itself, in the form of the primitive landscape, may be a cultural construction for the sake of examining law in action.
63. Malinowski, supra note 57, at 1237.
64. Id. at 1246.
65. Id. at 1247.
66. Ajay K. Mehrotra, Law and the "Other": Karl N. Llewellyn, Cultural Anthropology and the Legacy of The Cheyenne Way, 26 LAW & SOC.INQUIRY 741 (2001).
67. LLEWELLYN & HOEBEL, supra note 58, at 41.
68. On this literature, see David Nelken, Toward a Sociology of Legal Adaptation, in ADAPTING LEGAL CULTURES 7 (David Nelken & Johannes Feet eds., 2001); Michele Graziadei, Transplantations and Receptions, in THE OXFORD HANDBOOK oF COMPARATIVE LAW 441 (Mathias Reimann & Reinhard Zimmerman eds., 2006). On the idea of different types of transplants, see Jonathan M. Miller, A Typology ofLegal Transplants: UsingSociology, Legal History, and Argentine Examples to Explain the Transplant Processes,51AM.J.CoMP. L. 839 (2003). Ron Harris, The Transplantation ofthe Legal Discourse on Corporate Personality Theories: From German Codification to British Political Pluralism and American Big Business,63 WASH. & LEE L. REV. 1421 (2006) shows how legal transplantation involves not only the importation of fixed rules, but also legal conflicts and debates.
69. For discussions of these historical examples, see on republicanism, steven wilf, The First Republican Revival: Virtue, Judging, and Rhetoric in the Early Republic, 32 CONN.L. REV. 1675 (2000); on freedom and slavery, AMYDRU STANLEY, FROM BONDAGE tO CONTRACT:WAGE LABOR,MARRIAGE, aND tHE MARKET iN aN AGE oF SLAVE EMANCIPATION (1998); on the Cold War's influence on American law, MARY L. DUDZIAK,COLD WAR CIVIL RIGHTS:RACE aND tHE IMAGE oF AMERICAN DEMOCRACY (2002). http://www.bepress.com/ til/default/vol10/iss2/art7