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Sir Henry Maine: 1822-1888

Published online by Cambridge University Press:  02 January 2018

Raymond Cocks
Raymond Cocks*
Affiliation:
University of Sussex
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Extract

The centenary of Maine’s death prompts the questions: why is he remembered and what is his significance for us today? In part the answer is simple. He wrote well, and his books such as Ancient Law are a pleasure to read. It is frankly a relief to turn to his works after reading the remarkable but laboured chapters of that other nineteenth century jurist, John Austin (1 790-1859).

But going beyond his style and assessing his intellectual merits and the modern uses of his ideas is a more complicated matter. If his jurisprudential ideas are compared with those of, say, Bentham and Austin it is clear that there is an initial contrast in the way their respective theories are categorised. When the latter two thinkers are considered it is useful to refer to Benthamite and Austinian forms of jurisprudence.

Type
Research Article
Information
Legal Studies , Volume 8 , Issue 3 , November 1988 , pp. 247 - 257
Copyright
Copyright © Society of Legal Scholars 1988

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References

1. Maine's chief jurisprudential works were Ancient Law, its Connections with the Early History of Society and its Relation to Modern Ideas (Murray, London 1861); Village Communities in the East and West (Murray, London, 1871); Lectures on the Early History of Institutions (Murray, London, 1875); Dissertations on Early Law and Custom (Murray, London, 1883); Popular Government (Murray, London, 1885). Austin's major work was The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence, reprinted with an introduction by H L A Hart (Weidenfeld and Nicolson, London, 1954).

2. Sir Frederick Pollock, Oxford Lectures (Oxford 1890); p 153. John Burrow considers this view in Evolution and Society (Cambridge, 1966) p 143.

3. Sir Paul Vinogradoff, The Teaching of Sir Henry Maine (1904); 20 LQR 119.

4. Page 3 of the ‘Popular Edition’ (Murray, London, (1905);. There were numerous editions of Ancient Law. In writing about nineteenth century law and legal literature Professor Simpson has pointed out that Sir Henry Maine ‘wrote the only best seller of that, or perhaps any other century’: ‘Contract, The Twitching Corpse’ (1981) 1 OJLS 265, 268.

5. Stein, P, Legal Evolution, The Story of an Idea (Cambridge 1980); p 90.Google Scholar

6. Sir William Jones (1746-1794) barrister, judge, linguist, orientalist, author of Essay on the Law of Bailments (1781);, Institutes of Hindu Law (1794) etc; and see Mukerjee, S N, Sir William Jones: A Study in Eighteenth Century British Attitudes to India (Cambridge, 1968)Google Scholar particularly at pp 181–194; J D M Derrett has seen various relevant ‘links’ in Sir Henry Maine and Law in India, 1858–1958 (1959) 4 JR 40, 42-3. George Spence (1787) or 1789–1850) barrister, member of Parliament, proponent of chancery reforms, historian of equity, author of An Enquiry into the Laws and Political Institutions of Modem Europe (1826) etc.

7. I Langham, The Building of British Social Anthropology (Reidel, London, 1981); p 11. The nineteenth century response to Maine's patriarchal theories is considered in G Feaver, From Status to Contract (Longmans, London, 1969) particularly in Chapters 10 and 11. Feaver's book is a very useful and detailed biography of Maine. It is necessary to be cautious in explaining Maine's anthropological interests by reference to his time in India; Ancient Law was written before he visited the sub-continent.

8. Order and Dispute, An Introduction to Legal Anthropology (Penguin Books, Harmondsworth, (1979); Chapter 11, particularly at pp 186 – 188.

9. Eg, in considering Indian villages he saw the ‘Revenue Settlements’ as being a useful source of information, but he believed that they could only be understood in the light of ‘the oral statements of experienced Indian functionaries’ who nevertheless, Maine conceded, were often at variance with each other over the correct interpretation of the evidence: see L Dumont, ‘The Village Community from Monro to Maine’, Contributions to Indian Sociology (Dec 1966); pp 84 –5.

10. J D M Derret has observed that ‘useful work can be done without Sanskrit’, The Concept of property in Ancient Indian Theory and Practice (Groningen 1968); p 2. But he has also seen weaknesses in Maine's work. ‘Now Maine, for all his brilliance, was lazy. He tended to be content with the attractive statement. A close friend admitted that Maine, though a professor of civil Law, never bothered himself greatly about the Pandects or the Code, and he never burrowed deep into the sources of Indian laws… How many of Maine's characteristic notions stand up to a wider knowledge of Indian legal history? So far as India is concerned his notions of the origins of law are unfounded’. ‘Sir Henry Maine and Law in India, 1858–1958’ (1959) 4 JR 40, 43 and 49. The view of historians of English law has been just as critical. Maitland's response to Maine's work is an intricate story in itself, but it contained no warmth of feeling. ‘You spoke of Maine, well I always talk of him with reluctance, for on the few occasions on which I sought to verify his statements off act I came to the conclusion that he trusted too much to a memory that played him tricks’: C H S Fifoot (ed), The Letters of F W Maitland (Cambridge, 1965) Letter 279 and note 97. Also see Professor Elton's study, F W Maitland (Weidenfeld and Nicolson, London, 1985) p 17.

11. Eg, ‘Not many are so ambivalent as not to perceive that in innumerable cases where old law fixed a man's social position at his birth, modern law allows him to create it for himself by convention; and several of the few exceptions which remain to this rule are constantly denounced with passionate indignation. The point for instance, which is really debated in the vigorous controversy still carried on upon the subject of negro servitude is whether the status of the slave does not belong to by-gone institutions, and whether the only relation between employer and labourer which commends itself to modern morality be not a relation determined exclusively by contract’: Ancient Law (Murray, London, ‘Popular Edition’ 1905); pp 304 – 5.

12. His most overtly political study is Popular Government (Murray, London 1885);.

13. Eg, see Village Communities in the East and West, With Other Lectures Addresses and Essays; Six Lectures Delivered at Oxford (Murray, London, fourth edn 1881); p 194.

14. At various times Maine wrote for newspapers: ‘The pay was very high, £3 10s 10s for each article’; see G Feaver, From Status to Contract (Longmans, London, 1969); p 29, quoting James Fitzjames Stephen. Maine also wrote for distinguished journals such as The Saturday Review: see Ibid, Bibliography.

15. Eg, see ‘The Saturday Review’, 16 February 1861, p 677 and (1861) 114 Edinburgh Review, p 456.

16. Ibid, p 482.

17. Ibid, p 484. Also, see G Feaver, From Status to Contract (Longman's, London, 1969); p 136.

18. Consider F H Lawson, The Oxford Law School (Oxford 1973); pp 29, 34–5, 39, 44, 48–9, 55, 84, 91.

19. (Stevens and Haynes, London, 1896) Preface.

20. Even their interest in Bentham and Austin was selective: see W L Morison, John Austin (Jurists: Profiles in Legal Theory, Edward Arnold, London 1982); pp 151 – 158.

41. Jurisprudence (Sweet and Maxwell, London 1902); Appendix iv.

22. Ibid, p 54.

23. (1904); 20 LQR 119–20; and also in The Collected Papers of Paul Vinogradoff (Oxford, 1928) Vol 2, p 174.

24. Sir Henry Maine Today, Modem Theories of Law (Oxford 1933); pp 178 – 9.

25. The word analytical ‘was apparently invented by Maine in his references to Austin in his lectures at the Inns of court’: Legal Duties, and Other Essays in Jurisprudence (Oxford, 1931) p 14. Allen was not impressed. ‘In itself, the term is misleading, for it suggests a type of jurisprudence which confines itself to pure analysis of legal rules. It is doubtful whether there has ever been or ever can be, a jurisprudence of this kind’: Ibid, p 13.

26. The Effects of the Observation of India on Modem European Thought, Rede Lecture 1875, reprinted in later editions of Village Communities in the East and West (Murray, London, third edn, 1876) p 238.

27. Dissertations on Early Law and Custom (Murray, London 1891); p 5.

28. Ancient Law (Murray, London, ‘Popular Edition’, 1905); pp 169 – 170.

29. ‘Status: Problems of Definition and Use’ (1984); 43(2) CLJ 361–376.

30. For an example relating to ‘collectivist’ developments see Encyclopaedia Britannica, fourteenth edn 1929);.

31. Eg, W Friedman, Law in a Changing Society (University of California Press, Berkeley, 1959); Chapter 4.

32. Eg, O Kahn-Freund, ‘A Note on Status and Contract in British Labour Law’ (1967); 30 MLR 635. The topics revealed in the list of his published works indicate that the distinction formed a theme to a considerable part of his writing: see Selected Writings (Stevens, London, 1978) pp 374 – 381.

33. Eg, K J Gray and P D Symes, Real Property and Real People, Principles of Land Law (Butterworths, London, 1981); p 16. For a critical discussion of such distinctions see B Rudden (1982) 2 OJLS 238 and Stuart Anderson, ‘Explaining Land Law’ (1982) 45 MLR 346.

34. See, generally, R H Graveson, ‘The Movement from Status to Contract’ (1940); 4 MLR 261, and in Status in the Common Law (Athlone, London, 1953).

35. J W Jones, Historical Introduction to the Theory of law (Greenwood, Connecticut, 1940) p 58.

36. Lord Lloyd and M D A Freeman, Lloyd's Introduction to Jurisprudence (Stevens, London, fifth edn 1985); particularly at pp 872–873, 1230–1231.

37. R W M Dias, Jurisprudence (Butterworths, London, fifth edn, 1985); pp 388 – 393.

38. J W Harris, Legal Philosophies (Butterworths, London, 1980); particularly at pp 221 – 225.

39. The chief of these criticisms came from Malinowski: see, eg, Crime and Custom in Savage Society (Kegan Paul, London, 1926) p 56; and Sex, Culture and Myth (Hart Davis, London 1963); p 92.

40. For Gluckman's views of past criticisms of Maine see Politics, Law and Ritual in Tribal Society (Oxford, 1965) p 29 and note p 17. For enthusiastic endorsement of Maine's approach see The Ideas in Barotse Jurisprudence (Yale, 1965) p xvi; and see generally The Judicial Process Among the Barotse of Northern Rhodesia (Manchester University Press, 1955, and there is a second edn of 1967 with extra chapters).

41. Anthropology of Law, A Comparative Theory (Harper and Row, 1971) pp 143 and 150. A more restrained modern view may be found in Moore, S F, Law as Process, An Anthropological Approach (RKP, London 1978); p 216.Google Scholar

42. Books could be written on Maine's work as an historian, political scientist, publicist, social theorist, jurist etc. The present writer has written a study: Sir Henry Maine-A Study in Victorian Jurisprudence (Cambridge University Press, forthcoming).