The Warren Court: Rediscovering the Link between Law and Culture

Morton J. Horwitz
1988 The University of Chicago Law Review  
Europeans frequently observe that there has always been an absence of concern with political culture in the Anglo-American intellectual tradition. This is not strictly so. It is true that the triumph of Benthamism in the political and legal thought of nineteenth century England was accomplished by defeating historical and prescriptive modes of thought and elevating abstract universalism to the forefront.' Yet, Burke's own attack on the abstract universalism of the French Revolution 2 was itself
more » ... lution 2 was itself put forth in the name of culture, history and prescription. In nineteenth century England, attention to the concrete, to the particular-to context, social custom, and the weight of history-was put forth by conservatism against the Party of Reform. 3 It was the essence of Sir Henry Maine's attack on Benthamism. 4 Maine's turn to legal anthropology was offered for the purpose of developing a Darwinian theory of evolutionary customary law as an alternative to the abstract universalism of Benthamism. In the practical politics of nineteenth century English law reform, social engineering through parliamentary legislation became the chosen path of reform while control of common law modes of thought continued to be the turf of Blackstonian and Burkean conservatism. 5 On the Continent, attention to political culture was initially rooted in the prescriptive or customary claims of the seventeenth century aristocracy in reaction to the centralizing absolute monar-*
doi:10.2307/1599812 fatcat:7wgbfwrif5dy7ff73uykc7eqca