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Ancient Law: Its Connection with the Early History of Society, and its Relation to Modern Ideas (Henry Sumner Maine)

[Admin’s Note: This is a guest post by Jared, who is most definitely not a lawyer, nor a historian.]

Henry Sumner Maine was an Englishman of the High Victorian era, i.e., the late 19th century.  His Popular Government, a book discussing the properties and deficiencies of broad-suffrage democracy, is often recommended by reactionaries in the vein of Mencius Moldbug.  He included Popular Government in a list of three books constituting the canon of his so-called “Froude Society” (of which I am apparently a deacon).  But while Maine’s work has reactionary implications, it is never polemic. Maine was a sober-minded jurist and historian. The present book, his Ancient Law, is probably his best-known work, and the one most representative of his broader oeuvre. Maine tends to be a bit of a dry writer, but he never fails to deliver on the subject matter, and the book is a pleasure to read.

Ancient Law is a scholarly text on the nature of law in primitive or otherwise archaic societies (where “ancient” more or less refers to anything up to and including Rome). Maine’s thesis is twofold: first, that ancient law is best characterised by the importance it places on an individual’s status relative to a group, and second, that a proper understanding of ancient law can only come from a principled examination of things actually observed in history. In particular, theories such as Natural Law or the Social Compact are inappropriate for understanding or reconstructing ancient legal systems, and relying on them for such inevitably leads to erroneous and ahistorical conclusions.

Maine published Ancient Law in 1861, which winds up being interesting to the reader for a few reasons. Maine’s view of law and society is refreshingly Victorian, first of all, in the sense that it is plain and straightforward, unencumbered by any of the dubious intellectual fashions found in the twentieth century or later. When an example of Roman or British law compares favourably to, say, an Indian legal tradition (which is essentially all of the time), one can expect Maine to say so in an unambiguous, simple fashion. He compares cultural institutions as a pure historian, never feeling the need to hedge his language or reserve a sense of plausible deniability for his critics. Additionally, Maine wrote prior to the rediscovery of several important and truly archaic legal codes in the 20th century. The Code of Hammurabi (Babylonian law from around 1754 B.C., discovered A.D. 1901) and the Code of Ur-Nammu (Sumerian law from around 2100 BC, discovered A.D. 1952) figure nowhere in Maine’s work, for example. They thus stand to falsify Maine’s thesis, making his whole endeavour scientific. If Maine’s theories of ancient law are correct, then we should expect to be able to generalise from them to the unseen examples of Sumerian law, later Babylonian law, and so on. If not, then Maine’s theories need refinement.

Maine primarily uses history from Indo-European civilisations to develop his thesis. Rome dominates utterly, its legal system by miles the most sophisticated and well-documented, having touched all later law in some capacity or other. He heavily references Indian, Greek, Jewish, and Germanic legal traditions as well, and there are occasional examples from at least Celtic, Russian, Islamic, and Scandinavian history (China is conspicuously absent, though Maine wrote during the Second Opium War, and I don’t know exactly how much knowledge of ancient Chinese law was available in the West at the time). But Maine’s outsized reliance on Roman law (and he acknowledges it explicitly in his preface, stating “the necessity of taking the Roman law as a typical system has compelled the author to draw from it what may appear a disproportionate number of his illustrations”) does not appear to harm his thesis in any serious way. According to Maine, Rome is more or less necessary and sufficient for a proper understanding of ancient law. He asserts the “necessary” condition bluntly, simply claiming that “[an] indispensable condition of success is an accurate knowledge of Roman law in all its principal stages.” He defends the “sufficient” condition in a longer excerpt: “The truth is that the stable part of our mental, moral, and physical constitution is the largest part of it, and the resistance it opposes to change is such that, though the variations of human society in a portion of the world are plain enough, they are neither so rapid nor so extensive that their amount, character, and general direction cannot be ascertained. An approximation to truth may be all that is attainable with our present knowledge, but there is no reason for thinking that it is so remote, or . . . that it requires so much future correction, as to be entirely useless and uninstructive.”

In any case, Maine summarizes the general legal patterns he derives from history as follows: “Ancient Law . . . knows next to nothing of Individuals. It is concerned not with Individuals, but with Families, not with single human beings, but groups. Even when the law of the State has succeeded in permeating the small circles of kindred into which it had originally no means of penetrating, the view it takes of Individuals is curiously different from that taken by jurisprudence in its maturest stage. The life of each citizen is not regarded as limited by birth and death; it is but a continuation of the existence of his forefathers, and it will be prolonged in the existence of his descendants.”

Indeed, this is a perfectly reasonable summary of Roman society, which, as Maine points out, essentially consisted of “a number of little despotic governments, each perfectly distinct from the rest, each absolutely controlled by the prerogative of a single monarch.” More generally (per Filmer, and contra Locke): law in ancient societies was concerned with the patriarchal group, society was best viewed as an agglomeration of these groups, and this pattern holds uniformly across ancient Indo-European history. The individual was not atomic to society: the group was atomic to society, and the individual was primarily considered in terms of his or her status in the group. The group commenced with the immediate family, then could be generalised to the extended family (via “Agnatic” kinship, typically traced exclusively through males), then to the “House” or collection of families, and so on. The Agnatic group was inevitably found to be under the near-absolute authority (in Rome, called potestas) of a patriarch (the paterfamilias). And since ancient societies were group-focused and patriarchal, Maine notes that “we must be prepared to find in ancient law all the consequences of this difference. It is so framed as to be adjusted to a system of small independent corporations. It is therefore scanty, because it is supplemented by the despotic commands of the heads of households. It is ceremonious, because the transactions to which it pays regard resemble international concerns much more than the quick play of intercourse between individuals.”

The radically-different societal structure of ancient societies is fascinating in its own right. An individual in ancient society essentially bore to the family the same relationship that a corporation sole (a legal fiction wrapping a natural person, formalising a certain position) bears to a corporation aggregate (a typical corporation, existing separately from its owners). Many natural intuitions for reasoning about a corporation thus follow analogously to the ancient family: what mattered was the structure and development of the corporation over time — who was its executive, how were its assets distributed internally, who were its officers, and so on. Law followed in turn, with matters like adoption (analogue: M&A) and inheritance (succession, restructuring) naturally rising to particular importance. This general organisational structure is seen everywhere — Maine asserts “no feature of the rudimentary associations of mankind is deposed to by a greater amount of evidence than this” — but interesting variations on it were seen here and there, and Maine explores many of them in detail.

Most of the book is about ancient civil law, but there is also some treatment of the history of criminal law. Criminal law tended to outweigh civil law in ancient codes (Maine claims that the civil component of ancient Germanic codes in particular had “trifling dimensions” compared with the criminal). It also tended to take the form of a law of torts to a much greater degree than do modern codes — the injured party would proceed against a wrongdoer via civil action, accepting some form of redress (typically monetary) if he was successful, and that would be that.

Maine also advances some satisfying theories as to how ancient law tends to develop. Preceding even custom there is simply “habit,” or vague notions of unlawful conduct, where man is “practically controlled in all his actions by a regimen not of law but of caprice.” Said “habit” is formed largely by the ad hoc judgments of the ruling despot on one-off cases, “breathed for the first time by a higher power into the judge’s mind at the moment of adjudication.” Customary law is a later development, typically realised after the disintegration of raw despotisms into oligarchic regimes in which knowledge of the “habit” (now “custom”, still uncodified) is concentrated in some elite group. Code follows later again, perhaps unsurprisingly alongside the maturation of writing (Maine describes the value of codes to ancient societies as “unspeakable”).  Afterwards, “there is an end to what may be called [the Law’s] spontaneous development. Henceforward the changes effected in it, if effected at all, are effected deliberately and from without.” Maine points out that a noteworthy mechanism (amongst others) for effecting such deliberate change is Equity, i.e., the “inherent superiority” of a body of rules that claim to supercede existing law.

Maine also uses the history of ancient law to productively explain some later legal institutions that prove difficult to understand otherwise. Primogeniture, or inheritance of property passing automatically to the firstborn son, was widely prevalent in the Middle Ages, and was cited by Maine as “one of the most difficult problems of historical jurisprudence,” having no obvious precedent in any ancient society, Roman or barbarian. But it only had no precedent in terms of property—it had near-universal precedent in terms of sovereignty, and Maine describes in detail a satisfying theory on how it rose as a bizarre mixture of extant Roman law and barbarian custom under feudalism, the Fief incorporating in itself notions of both property and sovereignty.

In any case, Maine’s treatment of ancient legal institutions is detailed and interesting, and I won’t attempt to repeat it in its entirety here.  I may have gone too far as it is the secret to being a bore is to tell everything, and all that.

What is important, and a core part of Maine’s thesis, is that the law one observes in ancient history is not the law that would be expected from freely-contracting individuals living in the State of Nature, an idea that had gained enormous currency with intellectuals in Europe during the Enlightenment. This perverted interpretation of Natural Law, occasionally going so far as to presuppose that a literal State of Nature had existed at some unspecified in the past, was a hallmark of the thought of at least Hobbes, Locke, and Rousseau, and was responsible for a number of dubious theories about the origins of civilised society and the nature of ancient law.  But Maine points out that ancient society was an agglomeration of families, not individuals, and that voluntary and binding contract was alien to every civilisation until Rome. Although pacta sunt servada is generally an obvious moral imperative to us moderns, it was not necessarily so to ancient civilisations (Maine cites Odysseus as a legendary hero revered for his skill in deceit, for example). Contract is a hallmark of modern law; the Roman Law of Contract was uniquely advanced, and there was nothing else like it in the world. Indeed, Maine asserts that the evolution of law has been one of movement “from Status to Contract.”  To assume the existence of modern legal constructs when reasoning about ancient ones, i.e. to move from Contract to Status, is to commit a grave error.

Maine asserts that there are essentially two ways to interpret Natural Law. The first is the correct, forward-looking, ancient way: that Natural Law is a vehicle of Equity, allowing existing civil law to be altered with the aim of approximating a true, perfect, ultimately unknowable law. The second is the incorrect, backward-looking, “Enlightenment” way: that civilisation was formed by individuals living in a State of Nature according to Natural Law, which established true precedent, and which was afterwards corrupted by civil law. The latter interpretation leads to ahistorical error at best, and absurdity at worst. The “correct” interpretation of Natural Law, on the other hand, is plainly historical. The Romans had constructed a Jus Gentium — a Law of Nations assumed to apply to all men — based on common ingredients of society observed in ancient Italian tribes, and only afterwards inherited the theory of Natural Law, which came endowed with enormous Equity, from the Greeks. The later Roman Jus Naturale, then, was simply the Jus Gentium viewed in the light of the Greek theory literally the application of Stoic Natural Law to the existing Law of Nations.

There is a parallel here to Coase’s analysis of the lighthouse in economics, in which Coase pointed out that eminent thinkers had neglected history and assumed too much, and thus evidently gotten their conclusions wrong. Here, Maine’s historical approach examines how law in ancient societies actually developed. Inevitably, he finds that law in ancient societies was concerned with the patriarchal group, not the individual; an individual was a member of his group, and ancient society was an agglomeration of such groups. Ancient law displayed the institutions and characteristics that one would expect, given these properties.

Maine’s broader lesson is that Natural Law, viewed as a legal theory, can’t be used to reason about or predict the institutions of ancient law: men, as individuals, never existed in the State of Nature, and that method when applied to the past leads to incorrect results.  Maine’s theories about the nature of ancient law, on the other hand, are demonstrably useful.  He may not have had access to the codes of Hammurabi or Ur-Nammu, but we do.  A trivial two-minute Googling of their content suggests that he didn’t miss the mark: Babylonian law under the Code of Hammurabi was undoubtedly patriarchal, and earlier Mesopotamian law under the Code of Ur-Nammu appears to be the same, although there isn’t quite as much left of it (in any case, it is surely precedent to the later Babylonian law).  Both codes appear disproportionately weighted towards criminal law, to boot.

Maine’s refutation of the Enlightenment’s individual-centric and contractual view of early society was such that J. H. Morgan, a lawyer and fellow Englishman, actually compared Ancient Law to Darwin’s Origin of Species: “The revolution effected by the latter in the study of biology was hardly more remarkable than that effected by Maine’s brilliant treatise in the study of early institutions.”  Well, perhaps. Maine deserves the compliment, in any case.

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