The Invention of Legal Primitivism

Theoretical Inquiries in Law, Vol. 10, 2009

26 Pages Posted: 23 Apr 2009

See all articles by Steven Wilf

Steven Wilf

University of Connecticut School of Law

Date Written: April, 20 2009


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 Oliver Wendell 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. The Article explores the project of constructing geographies of legal knowledge as a way of understanding American law in a period of 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.

Keywords: primitive law, historical jurisprudence, modernism, CLS, imagination, other, orientalism, savage, Maine, Holmes, Wigmore, Llewellyn, Malinowski

Suggested Citation

Wilf, Steven, The Invention of Legal Primitivism (April, 20 2009). Theoretical Inquiries in Law, Vol. 10, 2009, Available at SSRN:

Steven Wilf (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics