The Moral Philosophy of Sir Henry Summer Maine

Author(s): Kenneth E. Bock

Source: Journal of the History of Ideas, Vol. 37, No. 1 (Jan. - Mar., 1976), pp. 147-154
Published by: University of Pennsylvania Press
Stable URL: http://www.jstor.org/stable/2708716
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THE MORAL PHILOSOPHY OF SIR HENRY SUMNER MAINE

BY KENNETH E. BOCK

The continuing though sporadic attention given to the writings of

Maine (1822-88) has tended lately to focus on his criticism of democra
on the value implications of his observation that there had been an hi
movement from a condition of social organization based on status t
based on contract. This would have surprised and probably disappoin
Maine and his students, for the basic objective of the author of Ancie
was to convince English scholars of the merits of an historical appro
legal studies and, even more, of the deeper insights that might be ac
through a comparative jurisprudence. That such a technical or method
interest has come to be obscured in discussion of political and moral i
explicable, first, by the fact that the singular value of Maine's metho
has not been widely appreciated' and, second, by the fact that a stron
persistent concern with ethical questions actually does run through
work. The concern is explicit and evident in his Popular Government, and
has been duly noted. But the moral implications of his methodology it
comparative and historical outlook-were not so didactically presente
Maine and have not been so generally recognized.
Maine's attack on democracy was many-sided. Much of it strongly offe
modern ears because we have heard it repeated in Fascist diatribes agai
inefficiency of popular government, its corruptibility, and the absurd ass
tion that wisdom in the complex affairs of statecraft will be promot
counting heads.2 His blunt elitism is most apparent in its negative a
Maine had no faith in the competence of the masses even to know wha
wanted, much less to achieve what was good for them by means of the
ticipation in the governing process. An hereditary aristocracy of exp
and intelligence was distinctly preferable to popular government, a
monarchy hedged about by a constitution could not be worse than the latt
democracy, exposed to the army, on the one hand, and the mob, on the ot
was fragile and incapable of maintaining a steady and necessary autho
affairs. The voice of the people, far from being the voice of God, was sim
echo of sentiments fed them by the manipulators, the "wire-pullers,"
stronghold was the party caucus. The people were vulgar, prejudiced, igno
opposed to all reforms or progress on both institutional and technical
easily persuaded to destroy the two great bulwarks of civilization-p
property and the sanctity of contract-and chronically subject to the i
of equality in the possession of material goods. Blinded by a configura
ideas deriving mainly from Rousseau, the people had become confused
'Cf. my "Comparison of Histories: The Contribution of Henry Maine," C
parative Studies in Society and History, 16 (March 1974), 232-62.
2B. E. Lippincott, Victorian Critics of Democracy (Minneapolis, 1938), 167-

147

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148 KENNETH E. BOCK

the difference between government for

ment by the community.3
When Maine expressed his reservatio
not, then, limit himself to detached an
had some pointed remarks to make abou
stern realities of social life. Democratic o
the Malthusian theory of population, w
had simply restated as the principle of su
of all biological science." One of the gr
ment was the notion that it would lea
wealth. But that could not be; the stock
got what depended on the outcome of a s

Here then is the great question about d

more than a moderate length. How will
tives will it substitute for those now a
present impel mankind to the labour and
of wealth in ever-increasing quantities, ar
in the distribution of wealth. They are th
by the strenuous and never-ending strug
war which makes one man strive to climb on the shoulders of another and
remain there through the law of survival of the fittest.4

This cold commentary was not limited to criticism of democracy. When a

legal question concerning contracts came before the Council of the Governor
General of India in 1862, Maine advised the members that learning to live up
to contractual obligations would be "one of the most efficient means of moral
education" for Indian natives and that the Council should be loath to interfere
in any way with the operation of such a powerful instrument of civilization-
one on which "all the modern progress of society seemed to be ... almost
mysteriously dependent."5 At another time he defended the penalty of flogging
before the same Council by cooly observing that the pain so inflicted could
hardly be pointed to as an excuse for abandoning the practice since "when you
sentenced a criminal to punishment you deliberately made up your mind to
render him extremely uncomfortable."6 In a similar vein he argued in Ancient
Law that the punishment of death was a social necessity "in certain stages of
the civilising process" not only because it served as a deterrent but because it
was needed to satisfy the community's thirst for vengeance which, if not

3The broad argument was presented in four essays on the fragility, difficulty, un-
progressiveness, and possible working modes of democracy: Quarterly Review, re-
printed as Popular Government (London, 1885).
4Ibid., 37, 45-50. The idea that this was the "central truth of all biological science"
or that such views are properly Darwinian is farfetched. Maine seems never to have
understood Darwin's theory of organic evolution.
5M. E. Grant Duff, Sir Henry Maine, a brief memoir of his life; with some of his In-
dian speeches and minutes selected and edited by Whitley Stokes (London, 1892), 90-
91. 6Ibid., 122.

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HENRY SUMNER MAINE'S MORAL PHILOSOPHY 149

quenched, could lead to general violence.7 Again, in one of his many de

of the East India Company, Maine exulted in "that wonderful succes
events" that had brought the "youngest civilisation of the world to in
and correct the oldest" and that had "avenged the miscarriage of the Crusa
by placing the foot of the most fervently believing of Christian nations o
neck of the mightiest of Mahometan dynasties."8
Condescending ethnocentrism of this kind dots Maine's writings. Cu
differences were to be seen as differences in degree of civilization. Contem
rary conditions observable in "the East" corresponded to the "infancy
human mind" rather than to a different maturity.9 India was a "cha
moral, social, economic, and political survivals that were preserv
supernatural beliefs but, fortunately, circumscribed and limited in
practical effect by British rule.10 With no apparent self-consciousness,
could address a group of young Indian students who had just received
degrees from the University of Calcutta thus:

Probably, if we could search into the hearts of the more refined portions
Native community, we should find that their highest aspiration was
placed on a footing of real and genuine equality with their European f
citizens.11

And in the following year he told the next class12 that a "catastrophe" lik
end to English power and supremacy in India was "remote or impossib
that there was no real danger, therefore, that the pent-up flood of barbar
that "the English race restrains, and only just restrains" would sweep
Bengal.
All of this, and more, has led to criticism of Maine as a reactionary, a
laissez-faire extremist in the Spencerian tradition, an ethnocentric imperialist,
and a scholar whose British-based prejudices tainted his investigations of law
and kinship with strong infusions of ideology.13
Beyond the obvious allowance that must be made for the fact that he was

7Ancient Law: its connection with the early history of society, and its relation to
modern ideas (London, 1861), 389-90.
'Quoted in M. E. Grant Duff, op. cit., 15-16.
'Ancient Law, op. cit., 121; Lectures on the Early History of Institutions (3rd ed.,
London, 1880), 226.
'?"India," The Reign of Queen Victoria, a survey of fifty years of progress, ed.
Thomas Humphry Ward, 2 vols. (London, 1887), I, 527.
""Address to the University of Calcutta" (1864), Village-Communities in the East
and West (New York, 1876), 252. 2Ibid., (1865), 271.
'3Lippincott, op. cit., and Morris R. Cohen, Law and the
1933) were moderate critics. Cf. G.-A. Feaver, "The Politica
Maine: Conscience of a 19th-Century Conservative," Journ
1965), 290-317; Brian Smith, "Maine's Concept of Progress
407-12; Henry Orenstein, "The Ethnological Theories of H
American Anthropologist, 70 (April 1968), 264-76. Feaver o
count in his thorough and excellent book, From Status to Con
Henry Maine, 1822-1888 (London, 1969).

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150 KENNETH E. BOCK

writing a century ago, using language

than it did then, Maine can be defen
dictment that has sometimes taken on the flavor of the Victorian caricature.
In his discussion of democracy he was, after all, reacting to what he re-
garded as a constitutional crisis in England by presenting forcefully a classic
conservative response to "excess." As he put it on one occasion, the results of
accumulated experience were not to be changed without placing the "burden of
explicit and laborious proof upon the advocate of change."14 He believed,
nevertheless, that all experience has shown that a large popular element in
constitutions was a desideratum.'5 The British and, especially, the American
constitution provided safeguards against the precipitate actions that plagued
popular governments, and, though he was fearful of what lay ahead for En-
gland, he admired the constitution of the United States and expected
democracy to succeed there. His warnings about the dangers posed for a
democracy by a strong army can hardly be taken today as the rantings of a
reactionary. As for humanitarian concern, he sought to assure his critic,
Godkin, that he was quite aware that one could preach the theory of popu-
lation as a doctrine that would "violate morality and social decency" and that
he had no intention of doing so.16
Maine qualified his attacks on democracy, then, but it is more important to
notice that he believed all government to be fallible. As Pollock pointed out,
Maine had little faith in political machinery, and he was especially wary of
grand systems of government deliberately and hastily drawn up to achieve the
millennium.17 He looked upon proposals for rapid expansion of the franchise
or for removal of checks on hasty legislation as dangerous in the same way
that a sudden augmentation of monarchical power would be. The enthusiasm
and, above all, the optimism that marked democratic movements worried
him, for they signalled a brisk activity in which government would undertake
to accomplish anything and all things in the lives of people; and there would be
no check on this in a democracy where people could be convinced that they
were acting freely and for their own good. Maine's fear of popular government
rested, as Pilling has argued convincingly, on his fear of tyranny or, as it came
to be called, totalitarianism.'8 To claim that a piece of legislation was in "the
interest of society" offered, Maine believed, the most common pretext for
tyranny.l9 The importance of all the complications and checks in the British
and American constitutions, frustrating though they were to men bent on im-
mediate reform, was that they were buttresses against the fallibility of
absolute power and against the "burden of government."20 Maine's reasoning
here was, as usual, practical and directed to concrete circumstances of social
life. Just as he objected to the emptiness and the obfuscating effects of Aus-

'4M. E. Grant Duff, op. cit., 414. '5Popular Government, op. cit., 185.
'6"Mr. Godkin on Popular Government," Nineteenth Century, 19 (1886), 373.
'7F. Pollock, Oxford Lectures and Other Discourses (London, 1890), 161-62.
'8N. Pilling, "The Conservatism of Sir Henry Maine," Political Studies, 18 (March
1970), 107-20.
'9M. E. Grant Duff, op. cit., 89. 20Popular Government, op. cit., 169.

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HENRY SUMNER MAINE'S MORAL PHILOSOPHY 151

tinian abstractions in the study of jurisprudence, so he distrusted p

cussion that dwelt upon the State and its mission or prerogatives
tered little whether the divinity claimed for the State was suppo
through a king or the people. What did matter was circumscription
power. Maine thought that the power of democratic governments w
larly hard to control.
When we turn from Maine's political discourses to the larger
work in comparative and historical jurisprudence, there is still ev
cern with value or "morality," and the concern is again marked b
involvement with an empirico-historical world. Maine's opinion
philosophers like Jeremy Bentham resembles Mandeville's judgm
early eighteenth-century British moralists: they confused com
derived from abstract principles with the rules of conduct
variously by different peoples through time. If the Greatest Hap
ciple were to be revised so that it could become a tolerable guide eve
poses of legislation (personal conduct was quite another matter),
was not to be sought in casuistry.

For these qualifications I look forward far less to discussion

philosophy as it is at present understood, than to some such applicat
comparative method to custom, idea, and motive as I have trie
mend.21

That is a remarkable statement from a Victorian jurist who could

been expected to be in possession of a definitive ethical system of En
and uncontaminated by alien influence.
But Maine was not a typical English scholar of his time. His break
analytic school of jurisprudence and the ethical implications of that
were well noted in his day and since. His introduction of English jur
historical and comparative method of studying law has also bee
knowledged. What has not been fully appreciated is that Maine's hist
comparative outlook differed significantly from that of his contem
his successors and that the difference had important moral implicat
Maine somehow escaped the prevalent eighteenth- and nineteen
European belief in an inevitable progress of all mankind to a conditi
lately achieved by Europe. He did recognize the possibility, and
situations the reality, of historical advances, and he believed tha
advance could be observed in the array of cultural differences drawn
history and contemporary data. He was very far, however, from acc
Comtean systematization of Turgot's or Condorcet's view that ev
of savagery, barbarism, and civilization was observable in a pres
range of differences which were therefore arrangeable in a universa
would depict the History of Man and Society. In his search for a fiel
parable histories he confined himself almost exclusively to that grou
ples identified by philologists as Indo-European. His attention wa
changes in particular institutions within that context, changes e

2 Village-Communities, op. cit., 232.

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152 KENNETH E. BOCK

legal history. He tried to supplemen

comparisons when the array of det
seemed to justify it. His judgments
were typically made about concrete usa
sically from a candidly expressed admi
Far from regarding advance, even in t
or natural, Maine saw it as a rare ph
bundle of potentialities in human na
orable unfolding of history. The spa
sought rather in the effects of diff
universal process of diffusion but in
culture and, derivatively, in the perva
Whatever might be said about t
perspective or the reliability of the em
did provide a basis for an alternative t
of developmentalist thought in his day
Thus, by denying the inevitability
only imposed upon himself the task of
rences for changes when and where th
tion to the fact that human accomplish
When he is accused of being a conse
operations of history to the positive ac
of his fundamental outlook is presen
indeed, to be undertaken with caution,
to be ineffective in producing the chan
by raising false hopes. But the notion
"forces" in history to bring about ch
thinking. He did not view conditions
than the philosophical radicals had. L
codification, was consistently urged
careful study of Roman law by English
Bentham had done by jolting his count
English law had, by a natural develop
ideal set of legal principles was not,
deduced from a presumably timeles
sought effectively in a context of h
for example, by the legal bondage o
Europe, but he argued that a change in
of a larger process of emancipation of
ties. Women had achieved complete l
prudence, but the influence of canon l

22Maine's method is discernible more in his substantive work than in didactic

methodological statements. But noteworthy discussions of method appear in Ancie
Law, op. cit., Chap. V; Lectures on the Early History of Institutions, op. cit.; Villag
Communities, op. cit., Lecture I and his Rede Lecture, 203-39.

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HENRY SUMNER MAINE'S MORAL PHILOSOPHY 153

to a point where Maine doubted that any Christian society was lik
women to their former state of independence.23 He was as f
illusion that anything new is better as he was from the dogma th
had to be destroyed in the name of progress. Englishmen should k
law not to satisfy an antiquarian interest, he argued, but to le
relevant to their desire for legal reform in modern England.24
In a larger sense, Maine saw in comparative studies a means
ropeans could come to understand themselves better. Utilitari
vived the notion that human nature is invested with a set of timeless attributes
and that social institutions can be understood as expressions of those inward
qualities. The result was that Englishmen regarded themselves as "exclusively
children of the age of free-trade and scientific discovery."25 Mankind in
general was supposed to be moved by the same springs of action discerned by
political economists in contemporary British merchants and manufacturers. It
was only from a comparative and historical standpoint that this restricting in-
sularity could be escaped. The modern European mind was not a product of
the Age of Reason. It had a long history, and its observable characteristics
were modifications and recombinations of very old ingredients. Identification
of those ingredients in other times and among other peoples would serve not
only to clarify self-awareness; it would also save Europeans from the serious
mistake of supposing themselves inherently superior to other peoples. The
comparative method would thus "abate national prejudices" and help contem-
porary European thought "to emancipate itself from those habits of levity in
adopting theories of race which it seems to have contracted." 26
The classical developmentalist or evolutionist doctrine is thus significantly
altered by Maine, and with important moral implications. While he main-
tained that some branches of the Indo-European family had made greater
progress in civilization than had others and that the British presence in India
could have a beneficial effect in hastening the process there, he never presented
a simple picture of a universal and inevitable march of humanity through fixed
stages toward a single goal. He dealt with a limited group of peoples whose his-
tories he regarded as comparable but not commingled. His interest was always
in the specific, the concrete, the individual. Cultural differences were,
therefore, to be explained in historical terms and not taken merely as
representations of stages in an abstract or ideal progress. A Europocentric
philosophy of history could not provide him with a clue to either universal or
Indo-European history, for Western experience had turned on a sequence of
particular historical events centering around the emergence of feudalism out

23Earl' History of Institutions, op. cit., 327 passim; Ancient Law, op. cit., 153-58.
24"Roman Law and Legal Education," Cambridge Essays (London, 1856), 1-29.
25 Village Communities, op. cit., 231.
2 Early History of Institutions, op. cit., 18, 97. Maine would have nothing to do with
the "now exploded philosophy" that there were ineradicable differences among human
races: M. E. Grant Duff, op. cit., 428.

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154 KENNETH E. BOCK

of a meeting of Graeco-Roman and barb

sequences of that meeting be depicted as
It is wrong, therefore, to try to force
mentalist thinkers who, from Marx t
sought to find the key to all histories in
and the future of all men in the limite
peninsula. To do so is to miss the mor
trism that is explicit in his work.
Sir Henry Maine never experienced t
ethics as in his legal scholarship he was h
the freedom that that implies.

University of California, Berkeley.

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