Maine's Ancient Law in the Light of Primitive Societies
| Published date | 01 December 1950 |
| Author | Robert Redfield |
| DOI | 10.1177/106591295000300406 |
| Date | 01 December 1950 |
| Subject Matter | Articles |
574
MAINE’S
ANCIENT
LAW
IN
THE
LIGHT
OF
PRIMITIVE
SOCIETIES
ROBERT REDFIELD
University
of
Chicago
1
E.
Adamson
Hoebel,
"Fundamental
Legal
Concepts
as
Applied
in
the
Study
of
Primitive
Law,"
51
Yale
Law
Journal
951
(1942).
2
Sir
Henry
Sumner
Maine,
Ancient
Law.
Its
Connection
with
the
Early
History
of
Society
and
Its
Relation
to
Modern
Ideas,
with
introduction
and
notes
by
The
Right
Hon.
Sir
Frederick
Pollock,
Bart.
(London:
John
Murray,
1920,
pp.
xxiv,
426).
3
Sir
Henry Sumner
Maine,
Dissertations
on
Early
Law
and
Custom
(new
ed.;
New
York:
Henry
Holt
&
Co.,
1886,
[first
published
1883]).
4
Notably
A.
S.
Diamond,
Primitive
Law
(London
and
New
York:
Longmans,
Green
&
Co.,
1935).
MODERN
student
of
primitive
law
has
written
that
&dquo;Sir
Henry
Maine’s
Ancient
Law
still
remains
after
eight
decades
the
pre-
eminent
work
on
the
origin
and
nature
of
primitive
legal
institu-
tions.&dquo; ~
1
Without
stopping
to
do
more
than
wonder
why
anthropologists
who
have
been
studying
primitive
peoples
failed
in
eighty
years
to
pro-
duce
a
better
work
on
the
subject,
one
may
review
Maine’s
book
in
the
terms
in
which
it
is
praised
by
Hoebel:
as
the
pre-eminent
work
on
the
origin
and
nature
of
primitive
legal
institutions.
This
paper
will
look
at
the
book
only
as
it
gives
understanding
of
the
law
and
custom
of
primi-
tive
societies.2
2
No
consideration
will
be
given
to
Maine’s
important
con-
tributions
to
the
history
of
Roman
and
European
law
and
to
method
and
viewpoint
in
historical
jurisprudence.
Hence
no
attention
will
be
directed
to
those
parts
of
the
book
which
deal
with
such
subjects
as
the
effects
of
legal
fiction,
equity
and
legislation
in
making
western
law
flexible
to
meet
changing
circumstances,
the
steps
by
which
the
Romans
developed
a
comprehensive
idea
of
contract
into
separate
legal
conceptions
appro-
priate
to
a
more
complex
society,
the
historical
development
of
the
con-
ception
of
natural
law
out
of
the
Roman
law
of
nations
and
other
elements,
the
nature
of
and
transformations
in
the
Roman
principle
of
patriarchal
authority,
and
the
history
of
testamentary
disposition.
These
are
all
matters
of
the
history
of
the
law
of
our
Graeco-Roman-European
tra-
dition.
They
are
the
principal
subjects
of
Maine’s
book,
and
of
Sir
Frede-
rick
Pollock’s
notes.
This
essay
will
consider
only
so
much
of
Maine’s
treatise
as
bears
upon
our
understanding
of
primitive
law
and
of
primitive
society.
Although
occasional
reference
will
be
made
to
Dissertations
on
Early
Law
and
Custom,3
which
Maine
published
twenty-two
years
after
the
Ancient
Law
appeared,
attention
will
center
on
the
earlier
and
greater
book:
it is
Ancient
Law
that
Hoebel
rightly
regards
as
pre-eminent.
If
the
admiration
accorded
the
book
by
the
writer
of
this
essay
appears
greater
than
that
of
others
who
have
discussed
it
in
recent
years,4
it
should
be
575
remembered
that
the
author
looks
at
the
Ancient
Law
from
the
know-
ledge
of
primitive
societies
gained
since
Maine’s
time,
and
that
anthropol-
ogy,
by
the
admission
of
one
of
its
representatives,
has
failed
to
produce
a
work
superior
to
Maine’s.
When
Maine
published
the
book,
in
1861,
Lewis
H.
Morgan
was
yet
to
write
the
first
extended
account
of
a
primitive
society
composed
from
a
scientific
point
of
view,
and
a
half
century
was
to
pass
before
anthropologists
trained
by
anthropologists
were
to
be
turned
out
by
universities
to
study
the
ways
of
life
of
the
non,
literate
peoples
by
tried
and
accepted
methods.
For
one
reason,
at
least,
Maine’s
book
is
indeed
a
work
to
draw
the
praise
of
students
of
today.
It
is
a
work
of
true
historical
scholarship.
Among
books
of
his
time
on
the
origins
and
nature
of
institutions,
Maine’s
is
outstanding
in
that
the
general
ideas
are
referable
to
particular
verifiable
facts.
Maine
had
sources
to
consult;
he
understood
the
sources
and
he
drew
from
them
general
conclusions
as
to
the
trends
of
history
in
social
and
especially
in
legal
institutions.
He
was
quite
aware
of
the
difference
between
his
empirical
and
historical
method,
based
on
a
study
of
legal
codes,
and
of
the
more
speculative
way
in
which
the
subject
had
been
treated
by
others,
and
he
vigorously
defended
the
superiority
of
his
method
of
inquiry.
He
was
as
sure
as
we
are
today
that
sound
conclusions
as
to
past
events
or
as
to
the
nature
of
institutions
would
not
come
from
mere
analysis
resting
on
assumption
as
to
some
underlying
principle
or
fictitious
state
of
nature.
Thus
Maine
was
quite
as
opposed
to
Hobbes,
who
assumed
a
primordial
state
of
nature
in
which
men
were
brutish
and
miserable,
as
he
was
to
Rousseau,
who
assumed
a
state
of
nature
in
which
man
was
happy
and
free,
because
each
assumed
something
which
he
had
no
way
to
prove.
And
when
Maine
came
to
the
question
as
to
whether
Locke
or
Filmer
was
right
when
the
one
declared
that
men
were
originally
organized
in
patriarchal
families
while
the
other
denied
that
men
were
so
organized,
Maine
refused
to
accept
the
views
of
either
because
the
conclusions
of
both
rested
on
mere
conjecture,
and
not
on
historical
research.
Similarly,
when
in
his
later
work
he
came
to
appraise
the
theories
of
Morgan
and
of
McLennan
regarding
an
original,
sexually
promiscuous,
human
horde,
he
recognized
the
idea
as
a
conjecture
unsupported
by
the
evidence
known
to
its
proponents.5
Maine’s
conclusion-that
the
original
form
of
society
was
patriarchal-rested
on
something
substantial,
namely
the
Laws
of
Manu
and
the
Code
of
Justinian.
As
shall
be
seen,
Maine
in
this
case
drew
the
wrong
conclusion
from
these
materials,
but
the
point
emphasized
here
is
that
he
had
materials,
and
that
he
used
them
as
a
scholar
would.
The
fact
that
Maine
got
the
wrong
answer
from
the .
5
Early
Law
and
Custom,
Chap.
vii.
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