George Walford: Besides Status and Contract

Books which make an impression get absorbed into the general trend of thought. Only in this way can they play their full part, but some are worth returning to, among them Maine’s Ancient Law or, to present it in its full glory, Ancient Law, its connection with the early history of society and its relation to modern ideas, by Sir Henry Sumner Maine, KC.S.I., LL.D., F.R.S., Foreign Associate Member of the Institute of France. With Introduction and Notes by the Right Hon. Sir Frederick Pollock, Bart. LL.D., D.C.L. London: John Murray 1920. (Preface to first edition dated 1861). When this now gets mentioned at all it is usually for its interpretation of one step in social development as a transition from status to contract. Calling to mind at once the transition from the ideology of domination, to that of precision, this by, itself links the work with systematic ideology, but it is only the most obvious connection.

The political thinking which considers itself advanced tends to assume an original condition of personal freedom from political limitations upon which legal and other restrictions have been imposed. Maine suggests the contrary; rather than being imposed, the first explicit laws formulated pre-existing practices and, in doing so, restricted the scope for capricious command enjoyed by patriarchal despots. (p. 7) Religion and morality originate in a similar way, emerging as distinct influences out of a control of the individual by the community not limited by any such specification. With its implication of a historical trend towards increasing political and intellectual freedom for the individual person this account fits in with reports from anthropologists who have lived with the undeveloped communities still or recently existing. Far from being free in their social relations the members of these were subjected to communal control which seldom became visible just because it was so complete; visibility requires contrast, and in these communities the individual hardly appears, remaining totally absorbed in the community.

Even now, of course, individuals do not all stand equal before the law. Governments possess greater freedom than the private person and trade unions also have privileges. But kings no longer claim to rule by divine right, and the law no longer supports the stance taken in a passage Maines quotes from King Alfred’s writings, that all offences could be compounded for a money payment except treason against a lord, for a lord should be loved like Christ himself.

An important element of Roman and English law is the legal fiction, for example that of adoption, by which a person not born into a family is treated, for all legal purposes, as if they had been. Legal rationalisers, Bentham prominent among them, poured scorn on these, but Maine holds that although undesirable as both confusing and falling below the high standards at which law must aim they are yet, on balance, beneficial. In one stage of development they offer a means of overcoming rigidity in the law, and he goes so far as to say that without the fiction of adoption it is difficult to see how society could have matured towards civilisation. In thus maintaining the value of an institution admitted to fall short of full rationality he illustrates the stance taken by the ideology of domination (in British politics mainly conservatism) against the assault from that of precision (mainly liberalism).

Much study of social development has been bedeviled by an illfounded belief that the first human communities exhibited common ownership, showing “primitive communism” to be the natural condition of society with private ownership a deviation. Originating mainly in Lewis Henry Morgan’s studies of the Iroquois this error vitiated, for example, Engels’ Origin of the Family, Private Property and the State. Maine at one point (p. 272) seems to be supporting the “common ownership” view of the Indian village community, but one of Pollock’s notes reminds us that when he got to know more about Indian affairs he changed his opinion, accepting the results of investigations showing the earliest form of these communities to have been “a disconnected set of families who severally owned their several holdings” (p. 315)

Maine’s book was written in 1861 and most anthropological investigation has been carried out since that time. Drawing attention to his work now may provoke comment showing it to have been disproved by later studies; that also will be useful, for knowledge and understanding advance by contradiction and correction as well as by simple addition.

from Ideological Commentary 43, January 1990.