The Encyclopedia of Libertarianism

Maine, Henry Sumner (1822-1888)

Sir Henry Sumner Maine was one of the most important legal academicians of the 19th century. He was born near Leighton, Scotland, educated at Cambridge, and, toward the end of his career, became Whewell Professor of International Law at Cambridge. His seminal work, Ancient Law (1861), is the product of lectures he delivered during the 1850s on Roman law and jurisprudence at London’s Inns of the Court. Soon after its publication, he left the academic world to accept an appointment as the law member of the Council of Governor-General of India, charged with the responsibility of reforming and codifying Indian law. His experiences in this capacity reinforced his belief, evident in Ancient Law, that the evolution of societies—both institutionally and philosophically—can be most thoroughly understood through the historical and comparative study of law. Following up on his work in India, he was named Corpus Professor of Jurisprudence at Oxford, thereby becoming the first professor of comparative and historical jurisprudence in the history of that university. The lectures he delivered there formed the basis for his later works, Village Communities in East and West (1871), Lectures on the Early History of Institutions (1875), and Dissertations on Early Law and Custom (1883).

Maine is best known for the proposition advanced in Ancient Law that “the movement of the progressive societies has hitherto been a movement from status to contract.” As he explained, the ancient law recognized and dealt with the relationships among extended families, not individuals. Individual members of a family were subject to the control of the family head. As he points out, under the Roman legal conception, Pater Potestas, the head of the family possessed virtually complete power, including those of life and death, over members of the family. Consequently, the laws did not recognize individuals qua individuals because they only had status within the realm of this patriarchal authority. The gradual erosion of the notion of Pater Potestas was marked by a movement to contract, wherein law recognized the capacity of individuals to assume powers, responsibilities, and authority. Progressive societies, as Maine shows, are those where this “emancipation” or “liberation” of the individual had taken place—“static” societies, those whose legal systems still adhere to “status.”

Although Maine regarded Western societies as “progressive” principally because this evolution to contract resulted in greater individual liberty, initiative, and responsibility, he also was one of the more trenchant Victorian critics of a growing and seemingly inevitable movement toward democratic government. So much is clear from his Popular Government (1885), in which the influence of Edmund Burke and Herbert Spencer is particularly evident. The work consists of four somewhat disjointed essays that deal with major difficulties underlying both the theory and practice of democracy. He finds grave faults with Rousseau’s teachings, which, he believed, fueled the notion of an omnipotent democratic state that could dispose of “everything which individual men value, their property, their persons, and their independence.” In the same way, he was critical of Jeremy Bentham for supporting the desirability of “a priori” constitutions—those “founded on speculative assumptions remote from experience.” Thus, he maintained that the relative success of the American Constitution could be attributed to its incorporation of the accepted and proven modes of governance. In all, Maine’s contributions to the history of law and the evolution of free societies placed him in the highest rank of legal theoreticians.

 

Further Readings

Feaver, George. From Status to Contract: A Biography of Sir Henry Maine, 1822–1888. London: Longmans Green, 1969.

Maine, Henry Sumner. Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas. London: John Murray, 1861.

Originally published .