Using a change in knowledge regime as a paradigm of regime change, this paper explores the career of common law thinking in the United States between the nineteenth and twentieth centuries. It shows how, under the pressures of anti-foundational thinking, knowledge moved from a nineteenth-century regime of “knowledge that,” a regime of foundational knowledge, to an early-twentieth-century regime of “knowledge how,” a regime of anti-foundational knowledge concerned with the procedures, processes, and protocols of arriving at knowledge. It then shows how common law thinkers adapted to this change in knowledge regimes, transforming the common law from a body of substantive knowledge into one that was principally procedural. The paper also shows, however, that the traditional discourses of the common law survived this intellectual transformation.
Kunal Parker, Law and Regime Change: The Common Law, Knowledge Regimes, and Democracy Between the Nineteenth and Twentieth Centuries, 3 Critical Analysis of Law 362 (2016).