¹ Recent examples: Kaplan, David and Manners, Robert A., Culture Theory (Englewood Cliffs, New Jersey: Prentice-Hall, 1972), p. 36Google Scholar; Hoebel, E. Adamson, ‘Henry Summer Maine’, International Encyclopaedia of the Social Sciences, 9: 530–3Google Scholar. Cf. Burrow, J. W., Evolution and Society, A Study in Victorian Social Theory (Cambridge: The University Press, 1966), Chap. 5. In this penetrating analysis of Maine, Burrow notes his departure from evolutionism but still places him in the positivist tradition and laments his failure to move beyond historical depiction to functional analysis.Google Scholar

² Only a sketchy answer to this question can be presented here. I have tried to offer a more detailed exposition in ‘The Comparative Method of Anthropology’, Comparative Studies in Society and History, Vol. VIII (1966), pp. 269–80Google Scholar, and in The Acceptance of Histories (Berkeley and Los Angeles: University of California Press, 1956), Part I.Google Scholar

³ Explanation of cultural differences in terms of biological racial differences is anathema in the house of social evolutionism. Whenever an evolutionist strayed into racial explanations of or change differences he was caught in logical difficulties.

⁴ Actually, very few nineteenth-century evolutionists dealt with Society or Culture as wholes. Their attention was given, rather, to particular institutions or culture traits. But the ideal and abstract quality of the discussion was the same; their concern was with the series of stages through which, for example, the growth of Law or Poetry or Property had proceeded.

⁵ The evolutionists' faith in progress prevailed despite the fact that they, like most social theorists, were profoundly dissatisfied with their own society. Present evil, however, was attributed to digression from the necessary path of development and explained either by human error or by vicissitudes of history. Evolutionism contained no theory of retardation or degeneration.

⁶ Humphrey Ward, in his obituary notice on Maine in The Times, observed that Origin of Species applied the concept of evolution to biological phenomena while Ancient Law applied it to legal and social phenomena, and he saw more than a chronological connection between the two works. Eminent Persons: Biographies Reprinted from The Times, Vol. IV, 1887–1890 (London: Macmillan, 1893), p. 25Google Scholar. See also, Barker, Ernest, Political Thought in England: 1848 to 1914, 2nd ed. (London: Oxford University Press, 1951), pp. 140, 143Google Scholar; Pollock, Frederick, Essays in Law (London: Macmillan, 1922), pp. 10–11Google Scholar; Holdsworth, W. S., The Historians of Anglo-American Law (New York: Columbia University Press, 1928), pp. 69, 71, 80Google Scholar. More moderate views of the connection are expressed by Murray, Robert H., Studies in the English Social and Political Thinkers of the Nineteenth Century, Vol. II, (Cambridge: W. Heffer & Sons, 1929), p. 48Google Scholar, and by Vinogradoff, Paul and Gotein, Hugh, ‘Comparative Jurisprudence’, Encyclopaedia Britannica Vol. XIII (1964), p. 200Google Scholar. Cf. Feaver, George, From Status to Contract: A Biography of Sir Henry Maine, 1822–1888, (London: Longmans Green and Co., 1969), p. 46. Feaver sees no direct connection.Google Scholar

⁷ Maine, Henry Sumner, Village-Communities in the East and West, six lectures delivered at Oxford, to which are added other lectures, addresses, and essays (New York: Henry Holt & Co., 1876), p. 105.Google Scholar

⁸ Ibid., p. 178.

⁹ Maine, , Dissertations on Early Law and Custom, chiefly selected from lectures delivered at Oxford (New York: Henry Holt & Co., 1883), p. 133.Google Scholar

¹⁰ Village-Communities, op. cit., p. 226.Google Scholar

¹¹ Early Law and Custom, op. cit., p. 361.Google Scholar

¹² Cf. Lippincott, Benjamin Evans, Victorian Critics of Democracy (Minneapolis: University of Minnesota Press, 1938), p. 173.Google Scholar

¹³ Maine, , Popular Government (London: John Murray, 1885), pp. 37, 50–2.Google Scholar

¹⁴ Maine, , Ancient Law: Its Connection with the Early History of Society, and its Relation to Modern Ideas (London: John Murray, 1861), pp. 310–311.Google Scholar

¹⁵ Ibid., pp. 189, 254.

¹⁶ Ibid., p. 174.

¹⁷ Ibid., p. 250 and Chapter VIII, passim. The notion attacked by Maine is that there are ‘natural’ ways of acquiring something: picking nobody's fruit, resting on a spot of ground not occupied by anybody else, etc.

¹⁸ Maine, , Lectures on the Early History of Institutions, 3rd edition (London: John Murray, 1880), p. 210.Google Scholar

¹⁹ Maine's admiration for Bentham did not extend to acceptance of the doctrine of utility as a basis for a system of ethics. The greatest happiness of the greatest number could be a working rule for legislatures functioning in large modern societies where an average effect of laws was the only possible consideration. Bentham was quite mistaken in shifting this rule to the domain of morality. Ibid., pp. 398–400.

²⁰ Ibid., pp. 395–6. Maine's attack on the analytical jurists' conception of law is scattered widely through his writings. It appears in its most concentrated form in Lecture XIII, ‘Sovereignty and Empire’, ibid.

²¹ Ibid., pp. 359–61, 394.

²² The full title of Ancient Law expresses this interest of Maine's. It is elaborated in the Preface to the first edition: ‘The chief object of the following pages is to indicate some of the earliest ideas of mankind, as they are reflected in Ancient Law, and to point out the relation of those ideas to modern thought’. Op. cit., p. v.Google Scholar

²³ The only comprehensive presentation of Maine's time and work appeared recently in the excellent biography by Feaver, , op. cit.Google Scholar

²⁴ Vinogradoff, Paul, ‘The Teaching of Sir Henry Maine’, an inaugural lecture in the University of Oxford, March 1, 1904Google Scholar. In The Collected Papers of Paul Vinogradoff, Vol. II (Oxford: Clarendon Press, 1928), pp. 181–2.Google Scholar

²⁵ Village-Communities, op. cit., pp. 6–8Google Scholar. An informative discussion of the implications of comparative grammar for other studies appeared in Buck, Carl Darling, ‘The Relations of Comparative Grammar to other Branches of Learning’, Congress of Arts and Science: Universal Exposition, St. Louis, 1904, ed. by Rogers, Howard J., Vol. III (Boston and New York: Houghton, Mifflin and Co., 1906), pp. 32–52.Google Scholar

²⁶ ‘Roman Law and Legal Education’, in Cambridge Essays (London: John W. Parker and Son, 1856), pp. 1–29.Google Scholar

²⁷ These remarks should not be taken to suggest that Maine was an eminent student of Roman law. His most generous disciples and expositors made no such claim. Maitland admired Maine's ‘world-wide horizon, the penetrating glance, the easy grace, the pointed phrase’, but he made it clear that these qualities were needed more in the land of pedantic German jurisprudence than in England where ‘the signs of hard labour are disgusting’. The Collected Papers of Frederic William Maitland, ed. by Fisher, H. A. L., Vol. III (Cambridge: University Press, 1911), p. 460.Google Scholar

²⁸ Comte, Cours dc Philosophic Positive, 4e ed., Vol. IV (Paris, 1877), pp. 318–24Google Scholar; ‘Plan of the Scientific Operations Necessary for Reorganizing Society’, in System of Positive Polity, Vol. IV (London: 1875–1877).Google Scholar

²⁹ Maitland, , op. cit., Vol. I, p. 488Google Scholar

³⁰ See the opening lecture in Village-Communities, op. cit.Google Scholar

³¹ Maine also believed that the outlines of the history of a language were made more easily discernible by absence of those ‘external circumstances’ that affect such phenomena as laws and legal ideas. Language, it seemed to him, moved more of its own accord, whereas considerations of expediency or convenience—the factor of human volition—entered into law and usage (Village-Communities, op. cit., p. 8). Maine was generally perplexed by trying to steer a course among the extravagant claims of utilitarians for the effectiveness of deliberate social change, the enormous influence of legislation in modern legal history, the evidence for persistence in the long run of social histories, and the regularity in human affairs that a science of society seemed to require. It cannot be said that he arrived at a systematic solution to the problem, but he was ever mindful and cautious about recognizing local differences that arise as effects of special circumstances and events.Google Scholar

³² In what is often cited as his most audacious generalization, the movement from status to contract, Maine restricted the application to ‘the progressive societies’. Ancient Law, op. cit., p. 170.Google Scholar

³³ The broad issue is discussed perspicaciously by Stephen, Leslie, The English Utilitarians, Vol. I (London: Duckworth & Co., 1900), pp. 300–2.Google Scholar

³⁴ Maine, , ‘Mr. Godkin on Popular Government’, The Nineteenth Century, Vol. XIX (01–06, 1886), p. 369.Google Scholar

³⁵ Village-Communities, op. cit., pp. 196–7, 232–3.Google Scholar

³⁶ Ancient Law, op. cit., pp. 116–17Google Scholar; Early History of Institutions, op. cit., pp. 339–40Google Scholar. On race: ‘Memorandum on the Caird Report’, in Duff, M. E. Grant, Sir Henry Maine, a brief memoir of his life; with some of his Indian speeches and minutes, selected and edited by Stokes, Whitley (London: John Murray, 1892), pp. 427–8Google Scholar; Early Law and Custom, op. cit., p. 179Google Scholar; Early History of Institutions, op. cit., pp. 18–19, 96–7, 144, 282Google Scholar; Village-Communities, op. cit., pp. 215, 254Google Scholar; Feaver, , op. cit., p. 209. Maine used the word ‘race’ interchangeably with‘branch’, ‘people’, or ‘nation’, and it carried no connotations of cultural capacity. He had no doubts that the Aryan ‘race’, in its various branches had displayed greater achievements historically than other peoples, but he did not attribute that to anything like constitutional differences, any more than he explained differences among Aryan groups on such grounds. He never hesitated in making judgments about ‘inferiors’ and ‘superiors’; he was no cultural relativist. But biological explanations of differences made no sense in the context of his specific historical explanations, for example, of varieties of landholding, contract, distraint, or legislative activity from time to time or place to place.Google Scholar

³⁷ Ancient Law, op. cit., pp. 120–2.Google Scholar

³⁸ Ibid., p. 121.

³⁹ Ibid.

⁴⁰ Early Law and Custom, op. cit., pp. 192–3.Google Scholar

⁴¹ Maine's treatment of this issue appears in ‘The Patriarchal Theory’, Quarterly Review, 162 (01, 1886), pp. 181–209Google Scholar [an unsigned review of McLennan's work, but positively attributed to Maine by Pollock, in Ancient Law, 1906 ed., p. 176Google Scholar] and Chapter VII, "Theories of Primitive Society‘, in Early Law and Custom, op. cit., pp. 192–228.Google Scholar

⁴² Early Law and Custom, op. cit., p. 201.Google Scholar

⁴³ ‘The Patriarchal Theory’, op. cit., p. 200.Google Scholar

⁴⁴ ‘Objectivity' in Social Science and Social Policy’, in Max Weber on the Methodology of the Social Sciences, trans, and edited by Shils, Edward A. and Finch, Henry A. (Glencoe, Ill.: Free Press, 1949), p. 101.Google Scholar

⁴⁵ The reference was to McLennan, and Morgan, , ‘The Patriarchal Theory’, op. cit., p. 205.Google Scholar

⁴⁶ In his last work Maine acknowledged that if it is origins that are sought, then we must turn to ‘still savage races’. International Law; The Whewell Lectures (London: John Murray, 1890), p. 8Google Scholar. But he frequently took the position that we should work backwards at this by trying to find out more about the history of civilization before we turned to something that might be more ancient. Early Law and Custom, op. cit., pp. 88, 98, 237–41.Google Scholar

⁴⁷ In view of the fact that Maine was fairly explicit about his reasons for not using ‘primitives’, it is surprising to find him so often criticized for ‘overlooking’ this source of data. See, for example, Redfield, Robert, ‘Maine's Ancient Law in the Light of Primitive Societies’, Western Political Quarterly, Vol. III (12, 1950), pp. 574–89Google Scholar; Diamond, A. S., Primitive Law (London: Longmans, Green & Co., 1935).Google Scholar

⁴⁸ Ancient Law, op. cit., p. 20.Google Scholar

⁴⁹ Vilalge-Communities, op. cit., p. 65.Google Scholar

⁵⁰ Ibid., p. 14.

⁵¹ Early History of Institutions, op. cit., p. 296.Google Scholar

⁵² For a general statement of the thesis, see ibid., pp. 20–1.

⁵³ Ibid., pp. 11, 27.

⁵⁴ Village-Communities, op. cit., pp. 57–8, 211, 216–20.Google Scholar

⁵⁵ Ancient Law, op. cit., pp. 9–11.Google Scholar

⁵⁶ Ibid., pp. 74–9. Maine believed that Bentham's principle of the greatest good of the greatest number provided a similar vehicle for the expansion of English law.

⁵⁷ Ibid., pp. 22–4; Early History of Institutions, op. cit., pp. 225–8Google Scholar. ‘… There was only one society in which progress was endemic; and putting that aside, no race or nationality, left entirely to itself, appears to have developed any very great intellectual results, except perhaps Poetry… Except the blind forces of Nature, nothing moves in this world which is not Greek in its origin’. Village-Communities, op. cit., p. 238.Google Scholar

⁵⁸ Ancient Law, op. cit., p. 24Google Scholar. This was a favorite, repeated theme in Maine's writings. Cf. Wilbert Moore's view that a universal discrepancy between the ideal and the actual is a condition of ubiquitous social change: Social Change (Englewood Cliffs, N.J.: Prentice-Hall, 1963), pp. 18–21.Google Scholar

⁵⁹ See Hodgen, Margaret T., The Doctrine of Survivals (London: Allenson & Co., 1936)Google Scholar for the classic analysis of this chapter in evolutionist thought. Hodgen's estimate of Maine's interpretation of survivals differs, however, from the one presented here. Cf. Orenstein, Henry, ‘The Ethnological Theories of Henry Sumner Maine’, American Anthropologist, Vol. 70 (04, 1968), p. 271.CrossRefGoogle Scholar

⁶⁰ Early History of Institutions, op. cit., p. 144.Google Scholar

⁶¹ Ibid., pp. 276–7.

⁶² Ancient Law, op. cit., pp. 253–4Google Scholar; Early History of Institutions, op. cit., p. 14.Google Scholar

⁶³ Ibid., p. 275. It is in this sense that Maine employs the phrase ‘survival of the fittest’. See also, Maine, , ‘India’, in The Reign of Queen Victoria, ed. by Ward, T. H., 2 vols. Vol. I, (London: Smith, Elder & Co., 1887), p. 527Google Scholar. Stocking, George W. has observed that, if Darwinian language is to be used, then Tylor's interest focused on survival of the unfit. Race, Culture and Evolution (New York: The Free Press, 1968), p. 97.Google Scholar

⁶⁴ Thus Robertson Smith and Stanley Cook found the use of Tylor's notion of survivals inappropriate in their studies of religion. Smith, W. Robertson, Lectures on the Religion of the Semites (London, 1889)Google Scholar. Cook, Stanley Arthur, The Study of Religions (London, 1914).Google Scholar

⁶⁵ Early Law and Custom, op. cit., pp. 107, 111.Google Scholar

⁶⁶ Ancient Law, op. cit., p. 264Google Scholar; Early History of Institutions, op. cit., p. 88.Google Scholar

⁶⁷ Village-Communities, op. cit., pp. 221–2.Google Scholar

⁶⁸ Ibid., p. 58; see also pp. 52, 103 and Early History of Institutions, op. cit., pp. 35–46Google Scholar for other comments on the use of differences and similarities. The problem is discussed recently by Evans-Pritchard, E. E., The Comparative Method in Social Anthropology (London: Athlone Press, 1963)Google Scholar; Leach, Edmund R., ‘The Comparative Method in Anthropology’, International Encyclopaedia of the Social Sciences, I: 339–45Google Scholar, and sources cited there; Eisenstadt, Shmuel N., ‘Social Institutions: Comparative Study’Google Scholar, ibid., 14: 421–9.

⁶⁹ Early Law and Custom, op. cit., pp. 220–1, 233–4.Google Scholar

⁷⁰ Village-Communities, op. cit., p. 215.Google Scholar

⁷¹ Early History of Institutions, op. cit., pp. 77–8Google Scholar; Early Law and Custom, op. cit., pp. 330–1.Google Scholar

⁷² Early History of Institutions, op. cit., pp. 142–3.Google Scholar

⁷³ Early Law and Custom, op. cit., p. 5.Google Scholar

⁷⁴ Ancient Law (London: John Murray, 1906), pp. v–vi.Google Scholar

⁷⁵ Early History of Institutions, op. cit., pp. 65–70.Google Scholar

⁷⁶ Early Law and Custom, op. cit., pp. 218–19.Google Scholar

⁷⁷ ‘The Teaching of Sir Henry Maine’, op. cit., pp. 174–5.Google Scholar

⁷⁸ Murray, , op. cit., pp. 58, 68.Google Scholar

⁷⁹ The limited nature of Maine's status-to-contract thesis has been noted by Selznick, Philip, Law, Society and Industrial Justice (Russell Sage Foundation, 1969), pp. 61–2.Google Scholar

⁸⁰ The Patria Potestas is treated principally in Chapter V of Ancient Law. He returned to the subject in Early History of Institutions, op. cit., p. 310Google Scholar, and Early Law and Custom, op. cit., pp. 204–5, 216–17Google Scholar with considerable reservations. See also ‘The Patriarchal Theory’, op. cit.Google Scholar Maine's basic purpose in dealing with the patriarchal family should not be forgotten: he wanted to combat seventeenth-and eighteenth-century speculation about a ‘State of Nature’ by presenting evidence that early societies were aggregations of families rather than collections of individuals. Ancient Law, op. cit., p. 126Google Scholar; Early Law and Custom, op. cit., p. 197.Google Scholar

⁸¹ Ancient Law, op. cit., pp. 129–30.Google Scholar

⁸² Ibid., pp. 259–67.

⁸³ Notably, G. L. von Maurer, Nasse, E., and Landau, G.. For full bibliography, see Village-Communities, op. cit., Appendix II.Google Scholar

⁸⁴ This comparison comprised most of the text of Village-Communities, but see especially Lectures III and V. These lectures and those comprising Early History of Institutions, along with his Rede lecture, (‘The Effects of Observation of India on Modern European Thought’, reprinted in Village-Communities), reveal Maine's method and careful scholarship better than the classic Ancient Law.Google Scholar

⁸⁵ The Irish materials are explored in Early History of Institutions, op. cit. Lecture VI deals with the chief, Lectures IX and X with distraint.Google Scholar

⁸⁶ Ancient Law, op. cit., pp. 339–40Google Scholar; Early Law and Custom, op. cit., p. 285.Google Scholar

⁸⁷ In his remarkable A Treatise on the Methods of Observation and Reasoning in Politics, 2 vols. (London, 1852).Google Scholar

⁸⁸ ‘The Limitations of the Comparative Method of Anthropology’, Science, Vol. 4 (1896), pp. 901–8.CrossRefGoogle Scholar

⁸⁹ See Max Weber on Law in Economy and Society, ed. by Rheinstein, Max (Cambridge, Mass.: Harvard University Press, 1954), pp. xix, xxiGoogle Scholar; Eisenstadt, Shmuel N., op. cit., p. 422.Google Scholar