Who Killed Common Law?
A viral essay argues the Civil War, not postmodernism, fatally wounded America's foundational legal philosophy.
A viral essay by Benquo titled 'Who Killed Common Law?' offers a deep historical analysis challenging the standard narrative about the collapse of America's classical humanities curriculum. While figures like Allan Bloom blamed 1970s postmodernism, Benquo argues the roots go back to the Civil War era. The essay posits that the war created a 'delegitimating crisis' for the 700-year-old Common Law tradition, which failed to resolve slavery through legal mechanisms, undermining its core claim that reasoned norms converge.
This crisis allowed the rise of 'antinomian' ideologies rejecting binding standards. The pivotal shift came with Justice Oliver Wendell Holmes Jr. and his 1881 work 'The Common Law,' which framed law as a 'prediction of what courts will do' rather than the discovery of pre-existing principles. This Legal Realist school, culminating in Pragmatism in the 1920s and 1930s, completed the displacement. The new framework retained the forms of governance but abandoned the idea that law is discovered, treating it as something made anew by courts, which set the stage for the later curricular upheavals Bloom lamented.
- Identifies the Civil War, not 1970s postmodernism, as the key crisis that delegitimized the 700-year-old Common Law tradition in America.
- Traces the philosophical shift to Oliver Wendell Holmes Jr.'s Legal Realism, which redefined law as prediction, not discovery of principle.
- Argues Pragmatism in the early 20th century completed the takeover, emptying liberal institutions of their original foundational logic.
Why It Matters
Reframes modern culture wars by showing how foundational legal and educational shifts happened generations earlier than commonly believed.