Sir Henry Maine

Mathieu Deflem
University of South Carolina

This is the manuscript version of a paper forthcoming in The Blackwell Encyclopedia of Sociology, Second Edition. Edited by George Ritzer and Chris Rojek.  

Please cite as: Deflem, Mathieu. (forthcoming). “Henry Maine (Sir).” In The Blackwell Encyclopedia of Sociology, Second Edition, edited by George Ritzer and Chris Rojek. Malden, MA: Wiley-Blackwell. 


Abstract

The work of British legal scholar Sir Henry Maine is reviewed in its intellectual and social context as a contribution in the development towards the social-scientific study of law. Maine introduced important ideas on the historical development of law as influenced by non-legal social conditions. Seeking to contribute to the jurisprudence of his days, Maine’s work served explicitly practical purposes, yet he thereby also relied on scientific principles of historical inquiry and comparative research. This scholarly orientation remains at the heart of the social-scientific study of law and legal systems until this day.

Keywords: Comparative Law; Law; Legal Anthropology; Legal History; Sociology of Law


Sir Henry Maine (1822-1888) was a British legal scholar and civil servant, whose writings contributed to the development of the sociology of law, legal history, and legal anthropology. Maine’s work is significant not only because of its immediate contribution to jurisprudence and the professional study of law, but also and especially because of its intellectual role in the development of the social sciences. Specifically, Maine’s ideas entailed an important transformation of social philosophy towards historically informed perspectives. Unlike the contributions of historical materialism, however, Maine’s work has not received the renaissance in modern times that it deserves on intellectual and historical grounds alike.

From the 18th century onwards, the Enlightenment ushered in a break with natural law, which would eventually enable the birth of veritable sociological ways of thinking on law and other societal issues. Whereas the idea of natural law emanates from the notion that certain expressions of justice and law emanate from nature itself, the European Enlightenment made it possible to take on the courage to scrutinize, though public discourse based on reason, the conditions of law as a social institution.

Two important stages can be distinguished in how the study of society and law would be transformed in the post-Enlightenment period (Deflem 2008). First, there was the 18th-century appearance of social philosophies whose critical orientations were based on an abstract ideal. Exemplary in this regard is the work of French political philosopher Baron de Montesquieu (1689-1755), whose critique of the French absolutist monarchy was based on an ideal of democracy. Likewise influential were the ideas of the Classical School of criminal law that originated in the works of Cesare Beccaria (1738-1794) and Jeremy Bentham (1748-1832), whose introduced utilitarian ideas related to human nature and free will from which an ideal system of law and punishment could be derived.

Second, there was a move for social philosophers to rely on historical inquiry, an intellectual advance that occupied many thinkers throughout the 19th century. Among them, sociologists today know best the work of Karl Marx, though mainly because of the appropriation of his thought in later times as a basis for so-called critical perspectives in sociology and related fields. The reasons of this appropriation were and remain largely instrumental, to rewrite the history of sociology in terms of its presumed founders, additionally serving political goals to broaden the objectives of sociology beyond scientific aspiration. In this context, the legal philosophy of Henry Maine can be situated as an alternative, valuable approach ushering in the dawn of sociology as a social science.

Henry James Sumner Maine was born in Kelso, Scotland on August 15, 1822, the son of a medical doctor (Cocks 1988). The separation of his parents may have contributed to Maine being an introspective child with an enthusiasm for literature. He studied classics at Cambridge, where he quickly became known as a stellar scholar. In 1847, at age 25, Maine already attained a professorship in civil law. He subsequently taught law in London, where he also engaged in journalism on legal and political matters. Shortly after publication of his 1861 study Ancient Law, Maine went to work for the British government in India to help in the drafting of new statutory laws in the British colony. Maine returned to the United Kingdom in the late 1860s, first as a professor of law at the University of Oxford and subsequently at Cambridge. Despite his work and reputation as a legal scholar, Maine continued to devote time to journalism and civil service for the rest of his life. In 1887, Maine’s health declined and a year later, on February 3, 1888, he passed away at the age of 65.

Though Maine wrote several works on law and politics, it is his historical study on the development from ancient to modern law, published on the basis of lectures as Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas (Maine 1861), that provides the central ideas of Maine’s thinking and which has also endured as his most influential contribution. In the work, Maine argues that different societies will exhibit similarities in their legal systems to the extent that they also share similar social conditions of an extra-legal kind. Specifically, Maine observed an evolution in stages from primitive to feudal and eventually modern legal systems. Most important thereby, according to Maine, is that a relative decline in regulation by status take place as regulation by contract increases in relevance.

The proto-sociological orientation of Maine’s method of analysis is clear in his recognition, highly uncommon for a legal scholar, that law is shaped by non-legal conditions. Maine thereby relies explicitly on principles of science and evidence, as they had been forwarded in other areas of inquiry during his days, to justify the undertaking of Ancient Law to uncover the relationship between Roman law and the English legal system. Maine’s work is not only historical in orientation but also relied on comparative research of societies in different parts of the world. Aided by his stay in India, Maine’s comparative viewpoint is strongly developed and is, at that time, arguably rivaled only by Alexis de Tocqueville’s (1805-1859) famous writings on the functioning of democracy in the United States and the role of law therein (Deflem 2008).

The general contention underlying Maine’s ideas on the history of modern law is that legal systems reflect societal changes and that, therefore, similar events and processes in societies located in specific times and places will exhibit similarities in their legal arrangements. By example, Maine showed how feudalist system in Britain and in ancient Rome corresponded to certain similarities in their arrangements of law. Betraying an evolutionist orientation that marks much of 18th and 19th century thinking, Maine argued that feudalism developed out of an earlier primitive stage and subsequently developed into a modern (progressive) stage of human evolution. Primitive societies lack a formalized legal system and instead rely on kinship structures, most typically in the form of a patrilineal system that is ultimately justified on the basis of divine rights and obligations. In the feudal stage, the powers and rights of multiple patriarchal rulers are regulated by prevailing customs to be brought into harmony and co-existence. In the modern stage of evolution, finally, laws become codified, a process that occurs under the influence of the spread of literacy. Most critically, to Maine, the codification of laws enables a systematic comparison and weighing of various legal decisions, so that a coherent set of laws can be constructed as the most efficient legal policy at any given times.

Maine argues that not only the form but also the content of law changes over time. Specifically, over the course of historical development, the rights and duties of the individual gradually grain ground as the dependency on family kinship diminishes. In general, Maine argues, there is a decline of status and an increase in the practice of contract. Whereas status is ascribed and determined by connection with one’s family and, therefore, stable from birth onwards, contract exemplifies the outcome of negotiation among free and independent individuals on the basis of their achieved positions and qualities. Contract in the sense in which Maine uses the term is not necessarily a particular document that specifies certain obligations among parties, but a more generalized notion of agreement among free individuals who, in the context of a society, engage in social relations of various kinds. As such, the transformation in law Maine identified as a movement from status to contract corresponds to a broader cultural transition from collectivism to individualism.

It is synonymous with social philosophy to reflect on social processes and structures, including law, in normative terms oriented at critique. Also transcending the boundaries of observation and analysis, the legal scholarship of jurisprudence is by its very nature oriented at practical considerations related to the proper administration of justice. Yet, there are different methods by which legal philosophy and jurisprudence aspire to their respective objectives in ways that bring them closer to, or leave them further removed from, the scholarly ideals of the scientific study of society. While the utilitarian schools of legal philosophy and the historical-comparative orientation of Maine shared an interest in the study of law for purposes of reform, the radically different manner in which they conceived of this project sets them far apart in the development towards the social-scientific study of law.

Most critical is the difference between the assumptions on human nature in the utilitarian tradition, on the one hand, and the historical-comparative perspective by Maine, on the other. The historical and comparative study of law is essential to examine any legal system that is located in time and space and can serve various purposes, ranging from a purely scholarly interest (based on the logic of experiments) to the most ambitious philosophical aspiration (to ground a notion of natural law). Relying on historical and comparative methods, Maine’s objectives in Ancient Law were jurisprudential in seeking to find ways to contribute to strengthening the British system of law, at home and in the colonies. Yet, Maine thereby also contributed to develop a scholarly approach to the study of law inasmuch as he relied on an empirical analysis of law as it was factually practiced by legal professionals and affected lay people as well. As such, Maine’s reliance on comparative-historical inquiry anticipates the birth of sociology that would soon follow to introduce a way of thinking on society and law that is analytical in orientation.

It will readily be met with wide agreement among sociologists today that the historical orientation in the work of Karl Marx has been of much greater relevance for the development of sociology than the writings of Henry Maine. In any sociological sense of whose writings are most influential and referenced today, the role of Marx as a founder, intellectually though not institutionally, is today undisputed regardless of the merits of historical materialism to sociological analysis. It is also undisputed that Maine’s work is lacking in systematic qualities, with his writings largely based on lectures (Maine 1861, 1875) and essays (Maine 1885). Nonetheless, in terms of the development and introduction of its ideas, the historical and intellectual role of the work of Maine must be acknowledged, both in terms of the study of law and the development towards sociology.

Given Maine’s focus on law, it will be primarily sociologists (and anthropologists) of law who will find much food for thought in the writings of Maine rather than in the entire oeuvre of Marx, who never devoted anything but the most cursory attention to law or any other institution in the superstructure. Beyond its relevance for the study of law, what also sets Maine’s work apart is that his approach already contained the seeds of a sociological orientation. While Maine’s focus remains jurisprudential, writing explicitly to improve the English legal system, in his comparative-historical analysis he explicitly relied on non-legal conditions and principles to assess the evolution of law from ancient to modern times. As such, Maine pre-dated by half a century ideas that were later formulated in the sociologies of Emile Durkheim and Max Weber, both of whom were familiar with and referenced Maine (Cocks 1988). The notion that law is related to other institutions of society and that developments in law should be studied in relation to forces outside of law remain central principles for any serious sociological inquiry of law today.

SEE ALSO: Beccaria, Cesare; Law, Sociology of; Legal Profession; Science, Proof, and Law


References

Cocks, R.C.J. (1988) Sir Henry Maine: A Study in Victorian Jurisprudence. Cambridge University Press, Cambridge, UK.

Deflem, M. (2008) Sociology of Law: Visions of a Scholarly Tradition. Cambridge University Press, Cambridge, UK.

Maine, H.S. (1861) Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas. John Murray, London.

Maine, H.S. (1875) Lectures on the Early History of Institutions. Henry Holt and Company, New York.

Maine, H.S. (1885) Popular Government: Four Essays. John Murray, London.


Further Readings

Feaver, G. (1969) From status to contract: a biography of Sir Henry Maine, 1822-1888. Longmans, London.

Hutton, C. (2000) Race and language: ties of 'blood and speech', fictive identity and empire in the writings of Henry Maine and Edward Freeman. Interventions 2(1), 53-72. DOI: 10.1080/136980100360797

Kirk, R. (1953) The thought of Sir Henry Maine. The Review of Politics 15(1), 86-96.

Mantena, K. (2010) Alibis of empire: Henry Maine and the ends of liberal imperialism. Princeton University Press, Princeton.

O’Brien, N. (2005) ‘Something older than law itself’: Sir Henry Maine, Niebuhr, and ‘the path not chosen’. Journal of Legal History 26(3), 229-251. DOI: 10.1080/01440360500347483
 

See related publications on law and sociology of law.