Maine, Henry Sumner (1822–1888)

Henry Sumner Maine, a Cambridge-educated Englishman, worked as a journalist in London, a colonial administrator in India, and a lecturer on jurisprudence at Oxford and Cambridge. Maine made his mark on the study of law during a most impressive period of legal historiography in Europe, one that featured such luminaries as Frederic Maitland (1850–1906), Otto von Gierke (1841–1921), and Friedrich Carl von Savigny (1779–1861). During an era of nascent nationalism, these great scholars trained their attention on explaining the historical development of various branches of Western law.

Maine's signal contribution to this vast historiographic project was Ancient Law (1861), a work that successfully grafted anthropology onto the study of comparative law. Students know Maine's masterwork best for its signature phrase, “from status to contract,” a clear pattern of growth that Maine detected after peering closely into the dense tangle of ancient legal codes. Law, once based on status, emphasized a person's legal standing, which depended on the person's [Page 981]affiliation with one or another traditional group, such as the Roman patriarchal family.

In the modern era, law was based on contract. The legal standing of the person no longer depended on group affiliation but on individual autonomy. Legal personhood in the modern era meant above all the freedom to make contracts and create associations. Maine's phrase, so succinct in its summary, became shorthand for the complexities of legal evolution. Maine's understanding of legal evolution, however, was much more complicated than a simplistic, Whiggish notion of uninterrupted progress. In fact, Maine asserted that historians who assumed progress while searching for the origins of modern law in antiquity tended to fail to understand the past on its own terms.

Progress in developing a legal code, in fact, was the exception to the rule in world history. Maine's focus in Ancient Law was on one of the most illustrious and influential exceptions, the Roman law. As a society, the Romans succeeded where other civilizations failed because of the amount of intellectual force they devoted to the project of legal development as well as the length of time they focused on that project. In particular, Maine argued, the Romans avoided stagnation in their legal code by focusing on law as, above all, a practical activity. By creating the written legal code of the Twelve Tables (451–450 BCE), they broke the hold of customary law and could allow for innovation. In a later era, Roman jurists' emphasis on the practical enabled them to integrate natural law jurisprudence into their civil law without overwhelming the latter. Throughout his work, Maine asserted that one could not understand legal evolution without a grasp of the concrete details of practical legal activity.

Other important works of Maine include Village-Communities in the East and West (1871) and The Early History of Institutions (1875), based on his lectures on legal history at Oxford and Cambridge, and Popular Government (1885), in which he offered pointed criticism of popular assumptions about the inherent value of democracy.