Law Evolves: The Uses of Primitive Law in Anglo-American Concepts of Modern Law, 1861-1961

American Journal of Legal History (2018 Forthcoming)

Sydney Law School Research Paper No. 18/77

36 Pages Posted: 3 Dec 2018

See all articles by Coel Kirkby

Coel Kirkby

University of Sydney Law School

Date Written: November 22, 2018

Abstract

This study traces how Anglo-American legal thinkers used primitive law to develop their concepts of modern law in the century from Austin to Hart. It first examines how Maine developed his historical jurisprudence as a form of social evolutionary analysis of law. Next, it traces the development of legal anthropology as a distinct discipline combining the scientific method of participant observation with the legal method of the case study. Finally, it looks at how Hart uses primitive law to make his famous argument that law was ‘the union of primary and secondary rules’. In each case, legal thinkers develop their concepts of modern law through a foundational contrast with primitive law. This is a striking feature of much Anglo-American jurisprudence that cuts across the borders of the positivist, natural, historical, realist, and other schools of jurisprudence. Appreciating these new uses of primitive law is a first step in excavating an intellectual history of legal thought grounded in the context of colonial knowledge.

Keywords: legal history, legal theory, jurisprudence, intellectual history, history of ideas, legal realism, legal positivism, historical jurisprudence, social evolution, social evolutionary thought, historicism, Herbert Hart, Henry Maine, Max Webber, Karl Llewellyn, Max Gluckman, Ludwig Wittgenstein

JEL Classification: K10, K30

Suggested Citation

Kirkby, Coel, Law Evolves: The Uses of Primitive Law in Anglo-American Concepts of Modern Law, 1861-1961 (November 22, 2018). American Journal of Legal History (2018 Forthcoming); Sydney Law School Research Paper No. 18/77. Available at SSRN: https://ssrn.com/abstract=3289387

Coel Kirkby (Contact Author)

University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

HOME PAGE: http://https://sydney.edu.au/law/about/people/profiles/coel.kirkby.php

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