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 The teachina of Sir Henry Maine: 
 
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THE TEACHING OF 
 SIR HENRY MAINE 
 
 AN INAUGURAL LECTURE 
 
 DELIVERED IN CORPUS CHEISTI COLLEGE HALL 
 ON MARCH 1, 1904 
 
 BY 
 
 DR. PAUL VINOGRADOFF, M.A., Hon. D.C.L. 
 
 CORPUS PROFESSOR OP .TUEISPRUDENCE 
 IN THE UNIVERSITY OF OXFORD 
 
 LONDON 
 HENRY FROWDE 
 
 OXFORD UNIVERSITY PRESS WAREHOUSE, AMEN CORNER, E.G. 
 OXFORD: 116 HIGH STREET 
 
 Also SOLD BY 
 
 STEVENS & SONS, LIMITED, 119 & 120 CHANCERY LANE, LONDON 
 
 1904 
 Price One Shilling net 
 
THE TEACHING OF 
 SIR HENRY MAINE 
 
 AN INAUGURAL LECTURE 
 
 DELIVERED IN COEPUS CHEISTI COLLEGE HALL 
 ON MARCH 1, 1904 
 
 BY 
 
 DR. PAUL yiNOGRADOPF, M.A., Hon. D.C.L. 
 
 CORPUS PROFESSOK OF JUBISPRtTDENCE 
 IN THE UNIVERSITY OF OXFORD 
 
 LONDON 
 HENRY FROWDE 
 
 OXFORD UNIVERSITY PRESS WAREHOUSE, AMEN CORNER, E.G. 
 OXFORD: 116 HIGH STREET 
 
 ALSO SOLD BY 
 
 STEVENS & SONS, LIMITED, 119 & 120 CHANCERY LANE, LONDON 
 
 1904 
 

 /\,^S3\0A 
 
 hA 
 
Mb. President, Ladies and Gentlemen. 
 
 It is with a natural feeling of diffidence that I address 
 this representative gathering from the very place where 
 Maine and Pollock used to lecture. I am very sensible of 
 my many shortcomings, and if I take courage to perform 
 my task, it is because I hope that the University which 
 has so generously elected me may support my efforts in 
 the same liberal spirit. If I may be allowed to begin 
 with a personal remark, I should like to say that I was 
 first attracted towards the study of English law by 
 those features of English life which have always strongly 
 appealed to the interest of foreign observers, notably the 
 rule of law and the manly spirit of freedom. Like so 
 many others I began by studying political institutions, 
 but was insensibly led to inquiries as to legal and social 
 history. This brought me into contact with some of the 
 best representatives of English thought and learning, and 
 more especially with the Oxford intellectual centre. I have 
 had the privilege of personal intercourse with both the 
 professors who have rendered famous the Corpus chair 
 of Jurisprudence. Of my immediate predecessor it would 
 be difficult for me to speak in an appropriate manner, 
 though the difficulty does not lie in the lack of merit and 
 achievements on the part of a scholar who stands almost 
 unique as a representative of combined legal, philosophical, 
 and historical learning. But it is surely allowable and 
 even desirable that I should render you some account as 
 to how I understand the teaching of Maine, the first 
 occupant of the chair, who in a great measure determined 
 its position in the circle of studies. This theme for my 
 inaugural lecture seems also convenient, because it will 
 afford the opportunity of taking a stand in regard to 
 
general problems while discussing a definite and concrete 
 case. 
 
 It is not without significance that, though coming from 
 abroad, I can claim Maine as one of my most influential 
 teachers. His was one of those minds which radiate far 
 beyond their immediate surroundings; the whole of my 
 generation of students of law and history have had to 
 deal directly or indirectly with the ideas propagated by 
 him or similar to his, and the secret of such a potent 
 radiation is well worth attending to. It is not unusual 
 nowadays to talk in a rather supercilious manner of the 
 lack of erudition and accuracy, of the allusiveness and 
 vagueness of Maine's writings. Those who indulge in 
 such cheap criticism should rather try to realize what 
 accounts for his having been a force in European thought, 
 a potentate in a realm where parochial patronage and 
 a mere aptitude for vulgarization are not recognized as 
 titles to eminence. 
 
 It is not so much to the personality of Maine that my 
 remarks will apply : some of those who are listeuing to me 
 would certainly be more able to recall to our mind the 
 personal characteristics of this remarkable man — a scholar, 
 who before all strove to be a thinker; a lawyer, who was 
 more interested in the origins of legal rules than in the 
 rules themselves ; a man of the world, who brought all 
 the resources of his shrewd common sense to the investiga- 
 tion of antiquarian problems ; a sociologist, who never 
 dealt in names nor played with words. As I say, I would 
 not dare to attempt a sketch of this eminent personality 
 on the strength of my very incomplete impressions. But 
 there is another aspect from which one may view the life 
 of a leader of thought : such a leader always personifies in 
 his life and work, with more or less individual colouring, 
 some combination of the aims and ideas of his time, and 
 surely, in our case, it is well worth while to analyse the 
 elements of thought which constitute Maine's teaching. 
 Without going further than his books and a few papers 
 which have been published in regard to them, without 
 
pretending to discover something entirely new and start- 
 ling, we may try to make out the mutual interdependence 
 and the relative importance of his ideas. 
 
 I should like, however, to start from a personal observa- 
 tion. Maine was certainly not one of those builders of 
 systems as they are to be found among German scholars, 
 who sometimes, in exaggeration of their unrivalled learn- 
 ing, seem to move away from reality and to dwell in 
 a phantastic region of their own, where they accumulate 
 and dispose their materials according to requirements of 
 speculation, without much regard for the facts of life. 
 Nor was he subject to the spirit of formalism which 
 represents the natural exaggeration of the lucidity and 
 order, so characteristic of the French school: he never 
 sacrificed the complexity of organic evolution to unity of 
 conception and clearness of exposition. Whatever his fail- 
 ings, he imdoubtedly possessed the merits of an English- 
 man in his search for the meaning of life as it really is. 
 Not the least noteworthy of his sayings is the definition 
 of law as commoTi seTise ^. And we may be sure that it is 
 not through chance, or oddity of disposition, or scholarly 
 absence of mind that this clear-headed thinker of rather 
 epicurean tastes spent his life in the hazardous enterprise 
 of trying to connect the earliest notions of mankind as to 
 law with the results of modem thought. 
 
 Maine haa taken good care to explain why his life's 
 work was achieved in this direction. I think that students 
 of his books will admit that he conceived his whole literary 
 career as a constant struggle against pure abstractions and 
 a priori assumptions. I will just refer to the following 
 retrospect, drawn by our author near the end of his life. 
 After confessing a distaste for inquiries as to the absolute 
 origin of human society, inquiries 'which only land the 
 investigator in mud and fog,' he proceeds to define his 
 own aims: 
 
 ' The course which I have followed . . . has been to trace 
 
 * Address to the students of the University of Calcutta (Village 
 Communities, 3rd ed., 258). 
 
the real as opposed to the imaginary or the assumed history 
 of the institutions of civilized mankind. When I began it, 
 several years before 1861, the background was obscured 
 and the route beyond a certain point obstructed by a priori 
 theories based on the hypothesis of a law and a state of 
 nature ^.' 
 
 Although Maine recognized a certain usefulness in these 
 conceptions in so far as they cleared the way for legal 
 reforms, assisted the establishment of international law, 
 and incited to a simplification of law in general, he never- 
 theless contended that they were based on thoroughly false 
 assumptions of fact and that they produced mischief both 
 in jurisprudence and in the practice of the law. He posi- 
 tively refused to accept the idea of a social compact as the 
 basis for the rights and duties of man in society, pleading 
 that everything we know about the early stages of human 
 societies shows these latter to be organic bodies and not 
 products of contractual combination, As strong a protest 
 was entered by him against speculations on the condition 
 of primitive man : 
 
 'These sketches of the plight of human beings in the 
 first ,ages of the world,' says he, ' are effected by first 
 supposing mankind to be divested of a great part of the 
 circumstances by which they are now surrounded, and by 
 then assuming that in the condition thus imagined, they 
 would preserve the same sentiments and prejudices by 
 which they are now actuated, although, in fact, these 
 sentiments may have been created and engendered by those 
 very circumstances of which, by the hypothesis, they are 
 to be stripped *.' 
 
 Even the limited value which Maine was disposed to 
 concede to the teaching of the law of nature he ascribed 
 chiefly to the fact that under its generalities there was 
 hidden a certain amount of matter-of-fact law which was 
 not the product of mere abstractions. One of his favourite 
 pursuits was to trace the tenets of modern international law 
 through appeals to considerations of natural equity to the 
 
 ' Early Law and Custom, 192. ^ Ancient Law, 254. 
 
historical jus nafurale of the Romans and thence to the 
 jus gentium, the actual law laid down by Roman judges 
 for the transactions of the multifarious population whidi 
 gathered around their tribunals. No less an influence on 
 the formation of these a priori assumptions was assigned 
 by Maine to the political struggles of the seventeenth and 
 of the eighteenth centuries, which called forth a negation 
 of traditional institutions and acquired rights. In his 
 view Locke, Hobbes, and Rousseau cannot be understood 
 and estimated at their true value, if we study their theories 
 without taking into account the circumstances under which 
 they were formed. In a work usually put aside by Maine's 
 followers, but exceedingly characteristic of the considera- 
 tions which influenced our thinker, in the book on Popular 
 Government, we find an extensive criticism of Rousseau's 
 speculations on primitive man. Quite apart from the 
 polemical value of these criticisms, the very temper in 
 which they were conceived and conducted is not without 
 meaning : it shows what a passionate hold the opposition 
 against these theories had acquired on Maine's mind. Our 
 highly polished and fair-minded writer waxes almost 
 savage in his diatribe against Rousseau, and not the least 
 startling sign of his disposition is perhaps to be found in 
 the unexpected sally against Thackeray, some of whose 
 favourite personages are said 'to have something of Rous- 
 seau's natural man as he would have shown himself if 
 he had mixed in real life^ something, that is, of the violent 
 blackguard ^.' 
 
 Maine's opposition was directed not only against theories 
 of the state of nature and their various applications in law 
 and politics, but also against a movement in jurisprudence 
 of which he recognized the importance, namely, against 
 analytical jurisprudence, as expounded by Bentham and 
 Austin. In this case an attempt was made to establish 
 general principles and to deduce their consequences not as 
 a system of natural equity or of the necessary attributes 
 of human nature, but by the analysis of the principal ideas 
 
 ' Popular Government, 154. 
 
of juridical intercourse at the present time. Maine often 
 dwells on the value of these attempts, claims for them 
 a distinctly scientific character, and calls attention to their 
 close affinity with the development of political economy. 
 Bentham and Austin appear to him as the juridical com- 
 peers of Adam Smith and Ricardo. But still, he is unable 
 to follow the lead of these thinkers and clearly marks the 
 dividing line between their conceptions and his own. Their 
 mode of investigation is too abstract for him. Its value 
 depends at least on the estimate of the elements rejected in 
 the process of abstraction, and the importance of these 
 elements clearly increases as we proceed from mathematics 
 to the analysis of economic facts and from those to the 
 study of juridical relations. These last, at any rate, are 
 so permeated with religious, ethical, political ideas, so 
 bound up with custom, tradition, imitation, that it is 
 impossible to arrange them on the single string of utili- 
 tarian reasoning, even though it be tending towards the 
 happiness of the many^- Even the best expositors of 
 political economy ' occasionally lay themselves open to the 
 observation that they generalize to the whole world from 
 a part of it; that they are apt to speak of their proposi- 
 tions as true a priori, or from all times, and that they 
 greatly underrate the value, power, and interest of that 
 great body of custom and inherited ideas which, according 
 to the metaphor which they have borrowed from the 
 mechanicians, they throw aside as friction^.' And there 
 is not a little in the writings of ' John Austin which seems 
 to imply that the authors and expositors of civilized 
 systems of law are constrained, by a sort of external 
 compulsion, to think in a particular way on legal principles 
 and on the modes of arriving at juridical results ^.' 
 
 The consequence is that this analysis of society as it 
 exists ' and moves before our eyes, through omitting to call 
 in the assistance of history, often degenerates into an idle 
 
 ' Early History of Institutions, 361. 
 
 " Rede Lecture (Village Communities, 3rd ed., 233). 
 
 ' Village Communities, 4. 
 
exertion of curiosity, and ia especially apt to incapacitate 
 the inquirer from comprehending states of society which 
 differ considerably from that to which he is accustomed ^.' 
 
 Need I recall to your . mind the remarkable analysis of 
 the relation between sovereignty and law by which the 
 onesided character of Austin's conception of law is laid 
 bare ? A law according to Austin is, in substance, a general 
 command laid down and sanctioned by sovereign force. 
 The criticism in the Early History of Institutions is espe- 
 cially interesting because it illustrates both sets of objections 
 formulated by Maine against the doctrines of analytical 
 jurisprudence. The barrenness of its abstractions is mani- 
 fested in the rejection of the notions of order and of public 
 opinion as elements in the formation of law. On the other 
 hand, the inconvenience of a reasoning not framed by 
 definite conditions of space and time is proved by references 
 to societies which do not recognize general commands, or 
 do not ascribe their origin to an action of the sovereign, 
 or do not look upon force as the necessary sanction of law, 
 or allow divided allegiance to several ruling powers, as 
 tribe and commonwealth. Church and State, local bodies 
 and central government. And thus, though fuUy conscious 
 of the vast difference between the teachers of the law of 
 nature and the teachers of analytical jurisprudence, Maine 
 still traces a direct filiation from one school to the other 
 through Hobbes and Bentham, and deliberately leaves the 
 way of deductive logic for the path of inductive reasoning 
 on the basis of historical facts. 
 
 Hitherto our review of Maine's conceptions has been 
 moving as it were on negative lines : we have been trying 
 to ascertain against whom the polemical edge of Maine's 
 mind was directed. Let us now turn to the other side of 
 the problem and inquire what positive influences have to 
 be taken into account in order to explain his position. 
 
 He himself undoubtedly thought that his way of reflect- 
 ing on the facts of law and society went back to deeply 
 rooted, national peculiarities. It would, of course, be too 
 ' Ancient Law, 310, 
 
much to say that the high appreciation of organic arrange- 
 ments in social life, the distrust of abstractions, the ready 
 acceptance of compromises and practical combinations are 
 traits exclusively confined to the English intellectual atmo- 
 sphere, or that EngHsh thinkers never swerVed from these 
 principles : we have been just mentioning a powerful school 
 of deductive theorists. But the observation that the his- 
 torical leanings described have their firmest hold on the 
 English world, has been made too often to require special 
 proofs. Maine claimed an affinity with some of the best- 
 known defenders of organic development and conservative 
 principles in English law and politics — Burke and Sir James 
 F. Stephen^. Though certainly not a hater of French 
 society and literature, he mostly disagrees with the French 
 mode of handling questions of law and of politics. He 
 recognizes the use of the so-caUed law of nature to French 
 lawyers of the ancien rigvme, but he looks upon it as 
 a kind of heroic medicine to be applied in desperate cases. 
 Like all strong remedies, this drug is a poison after all 
 and bound to disagree in many respects with the patient, 
 even if it helped against a particular disease. And in so 
 much as French politics and law followed the path of 
 revolution, Maine has hardly anything but criticism to 
 bestow on them. His opposition in this case assumed the 
 strength of prepossession, and he really seems to forget 
 the warnings which he was so apt to give on other occa- 
 sions: he does indulge in hasty generalizations about 
 democracy, party, the right of majorities and the like, 
 without paying much heed to the highly complex nature 
 of the problems discussed. For our purpose these utter- 
 ances are interesting quite apart from their intrinsic value, 
 because they reveal the bent of the mind we have to 
 observe. 
 
 Another powerful influence acting on Maine in the same 
 
 direction was his scholarly connexion with one particular 
 
 school of continental jurists. He first approached the study 
 
 of law mainly under the guidance of the German school 
 
 * Popular Goveinment, 179 ; of. 29, 54. 
 
of historical jurisprudence which had formed itself around 
 Savigny and Eichhorn. The special disquisitions of ancient 
 law on testament, contract, possession, &c., leave no douht 
 as to his close dependence on Savigny and Puchta's writings. 
 But the school of which we are speaking was an3rthing but 
 a group of technical specialists : it represented, on the con- 
 trary, a powerful social doctrine which had sprung into 
 being in Europe's struggle against revolutionary rationalism, 
 as embodied in the French Eepublic and in Napoleon's 
 Empire. Romantic in its appeals to archaic custom and 
 national traditions, conservative in its legal creed, the first 
 school of historical jurisprudence entered the lists in support 
 of a conception of law determined by historical antecedents, 
 by a growth of national psychology hardly less instinctive 
 than the evolution of language itself. The English disciple 
 of Savigny often dwells on the ideas, that the greater part 
 of the social and intellectual structure of a nation is be- 
 queathed to it by former generations, that unconscious 
 tradition is perhaps the most potent agent in historical 
 life, that the margin of change is surprisingly small and 
 progressive nations quite exceptional. Let us note, how- 
 ever, that Maine's eyes were open to certain conditions of 
 progress. He does not indorse the doctrine that national 
 characteristics are not to be overcome, in the same sense as 
 individuals cannot get rid of their features and limbs. He 
 traces a constant tendency to change, produced by inter- 
 course. He even dwells, possibly not without a side-glance 
 at Buckle's well-known theory of moral immobility, on the 
 possibility and reality of moral progress \ But still pro- 
 gress is for him an exceptional process, in which only very- 
 few societies have achieved any marked success. He is 
 inclined to strengthen this doctrine of a progressive minority 
 by assigning a leading influence in the shaping of its course 
 to Greek philosophy and to Eoman law. There is, of 
 course, a wide chasm between this conception of the unity 
 of civilized mankind and the providential speculations of 
 Hegel, but nevertheless the narrow restriction of the range 
 
 * Ancient Law, 71. 
 
10 
 
 dl progressive universal history is characteristic of an age 
 which began by fixing its attention on national peculiarities 
 and proceeded to consider the history o£ mankind from the 
 point of view of intercourse between a few leading nations^. 
 The peculiar trend of these ideas is very noticeable in 
 a passage directed against Montesquieu's view of human 
 societies, as exceedingly plastic bodies exposed to the decisive 
 influence of external factors : 
 
 ' Herein lies the error of his system. He greatly under- 
 rates the stability of human nature. He pays little or no 
 regard to the inherited qualities of the race, those qualities 
 which each generation receives from its predecessors and 
 transmits but slightly altered to the generation which 
 follows it. The truth is, that the stable part of our mental, 
 moral and physical constitution is the largest part of it, 
 and the resistance it opposes to change is such that, though 
 the variations of human society in a portion of the world, 
 are plain enough, they are neither so rapid nor so extensive 
 that their amount, character; and general direction cannot 
 be ascertained ^. 
 
 I lay special stress on this point, because it marks as it 
 were the boundary between the conceptions of the Savigny 
 school and the peculiar contribution of Maine in the develop- 
 ment of jurisprudence. The words just quoted are certainly 
 conceived in the spirit of the older German school, and 
 it is clear that the idea of national continuity, if carried 
 far, would preclude the application of strictly scientific 
 methods to history and historical jurisprudence. If every 
 social individuality is very much alone by itself, there 
 would be hardly room for comparison, general inferences 
 and anything in the nature of historical laws. But the 
 close of the sentence pointing to inquiries as to the 'amount, 
 the character and the general direction' of the changes 
 which aSect human societies is outside the pale of the con- 
 servative school appealing to history for its justification. 
 Maine brings into the field of inquiry a new element, the 
 element of science in the English sense of the word, that 
 is of exact knowledge based on observation, and aiming 
 
 ^ Ancient Law, 28, ' Ibid., ii6. 
 
11 
 
 at the formulation , of laws. The fact is that Maine did 
 not only stand under the influence of the preceding genera- 
 tion, which had given such an extraordinary impulse to 
 historical research, but also under the sign of his own time 
 with its craving for a scientific treatment of the problems 
 of social life. Nothing could be more impressive than his 
 own words in the second address to the students of the 
 University of Calcutta, and I must beg leave to quote 
 them at some length : 
 
 ' Among all our subjects of study there is no doubt as 
 to which is the one to which belongs the future. The fact 
 is that within the last fifteen or twenty years there has 
 arisen in the world of thought a new power and a new 
 influence — not the direct, but the indirect influence of the 
 physical sciences, of the science of experiment and observa- 
 tion. The landmarks between the fields of knowledge are 
 being removed ; the methods of cultivation are more than 
 suspected to be the same for all.' . . . ' It is now affirmed, 
 and was felt long before it was affirmed, that the truth of 
 history, if it exists, cannot differ from any other form of 
 truth. There can be no essential difference between the 
 truth of the astronomer, of the physiologist, and of the 
 historian. The great principle that underlies aU our know- 
 ledge of the physical world, that Nature is ever consistent 
 with herself, must also be true of human nature and human 
 society which is made up of human nature. It is not, 
 indeed, meant that there are no truths except of the external 
 world, but that all truth, of whatever character, must con- 
 form to the same conditions, so that, if indeed history be 
 true, it must teach that which every other science teaches— 
 continuous sequence, inflexible order, and eternal law ^.' 
 
 Again and again he draws illustrations in his special 
 domain of jurisprudence from natural science. The in- 
 quiries of jurists based on a priori assumptions remind 
 him of the condition of physics and physiology in the pre- 
 scientific period. Kudimentary legal ideas are likened to 
 the primary crust of the earth which forms, as it were, the 
 
 '■ Calcutta Address (Village Commimities, srd ed., 266) ; of. Sir J.. 
 Strachey's Address in Sir M. B. Grant Duff's Memoir of Sir H. Maine ; 
 Edinburgh Review, 1893, 104; Sir F. PoUock, Oxford Lecttires,4i, 42. 
 
12 
 
 basis for the geologist's investigations \ Of the celebrated 
 exponents of natural science and inductive philosophy 
 Darwin seems to have impressed him most, but Whewell, 
 Mill, and Spencer had also been studied by him. One" of 
 his favourite views as to the passage in legal evolutiofl 
 from personal commands reputed to be inspired by Divine 
 agencies, to a Law of Nature derived from metaphysical 
 conceptions, and ultimately to scientific jurisprudence based- 
 on the exact observation of legal relations, recalls the well- 
 known sequence of the three stages in positivist philosophy, 
 although Maine does not seem to have directly borrowed 
 the idea from Comte, Mill, or Lewes, but rather evolved it 
 by a parallel process of reflection. 
 
 Enthusiasm for scientific aims and methods did not spend 
 itself in this case in lofty aspirations and sounding words ; 
 it became the moving power of Maine's life-work. As we 
 know, historical investigation of the growth of legal rules 
 and ideas had, according to his view, to take the place of 
 deductive reasoning. Readers of Ancient Law hardly need 
 to be reminded of the words with which the chapter on 
 the Early History of Testamentary Succession begins : 
 
 ' If an attempt were made to demonstrate in England the 
 superiority of the historical method of investigation to the 
 modes of inquiry concerning jurisprudence which are in 
 fashion among us, no department of law would better serve 
 as an example than Testaments or Wills ^.' 
 
 The object of this historical investigation was not so 
 much to solve questions of detail as to pave the way for 
 a general view of legal evolution. The study of early 
 stages and the methods of ancient history assumed accord- 
 ingly a primary importance. 
 
 ' We ought to commence with the simplest social forms 
 in a state as near as possible to their rudimentary condi^ 
 tion. The phenomena which early societies present us with 
 are not easy at first to understand, but the difficulty of 
 grappling with them bears no proportion to the perplexities 
 
 > Ancient Law, 3. » Ibid., 171, 
 
13 
 
 which beset us in considering the baffling entanglement of 
 modem social organization. But even if they gave more 
 trouble than they do, no pains would be wasted in ascer- 
 taining the germs out of which has assuredly been tmf plded 
 every form of moral restraint which controls our actions 
 and shapes our conduct at the present moment ^.' ' Ancient 
 history has for scientific purposes the great advantage over 
 modern, that it is incomparably simpler — simpler because 
 younger. The actions of men, their motives, and the 
 movements of society are all infinitely less complex than 
 in the modern world, and better fitted, therefore, to serve 
 as material for a first generalization ^.' 
 
 These observations disclose a point of view which would 
 hardly have been taken up, if jurisprudence had been 
 treated merely as a preparation for the legal profession 
 and the practical art of the lawyer. However, with all 
 truly philosophical thinkers, Maine was convinced that 
 every notable improvement on the theoretical side of study 
 would be sure to bear fruit a hundredfold on the practical 
 side. It is surely not by mere chance that he was so bent 
 on impressing on the young Calcutta students the impor- 
 tance of the scientific bearings of social study. In fact he 
 often went out of his way to show by examples the obvious 
 application of his theoretical views. Not to speak of the 
 negative but decisive advantage of throwing discredit on 
 a priori assumptions — a point which has been already 
 sufficiently illustrated, the new attitude assumed by his- 
 torical jurisprudence requires a careful examination of the 
 matter-of-fact conditions which underlie every set of legal 
 rules and have to be taken into account in its interpreta- 
 tion. It leads to a more intelligent handling of legislation 
 and reform by teaching to reconcile new ideas with ancient 
 traditions. In dealings with foreign countries and with 
 the races of the Empire, which exhibit in their life all. 
 stages and degrees of civilization, there is ample oppor- 
 tunity for the direct use of the faculty of historical under- 
 standing, and, as competent judges observe, nothing was so 
 
 ' Ancient Law, 1 1 9. 
 
 « Calcutta Address (Village Communities, 3rd ed., 269). 
 
14 
 
 characteristic of Maine's activity in India as his remarkable 
 power of seizing upon the vital features of the naltive 
 arrangements and estimating with an unfailing perspicacity 
 the strength of vernacular tradition and the possibilities of 
 reform ^- And even to an English lawyer studying the dis- 
 tinctions of real property or the rules of succession in the 
 light of the historical method, they cease to be parts of an 
 arbitrary and incoherent catechism and appear as organic 
 growths, corresponding to certain social needs and based 
 on ideas which have not lost their significance even in their 
 conventional and somewhat antiquated apparel. 
 
 Maine was, however, so convinced of the truth and 
 obviousness of this intimate connexion between theory and 
 practice that he did not spend much time in discussing its 
 bearings and devoted himself rather to what he felt he 
 could do best, namely the mapping out of the general 
 course of jurisprudence as it presents itself from the his- 
 torical point of view. Not stopping to fathom intricate 
 special problems, but intent on fixing decisive landmarks 
 and tracing general outlines, he achieved a work which 
 may be deficient in a close study of the evidence and in 
 a thorough knowledge of the literature of the subject, but 
 which will ever stand as a monument of creative thought, 
 and an incentive to further investigations. Indeed the 
 comprehensive account drawn up by this pioneer of his- 
 torical jurisprudence has not been surpassed or equalled as 
 a general survey of the ground. 
 
 The wide range of view which it embraced led our 
 thinker to recognize at once that the historical method 
 as practised by the German school was insufficient and 
 had to be supplemented from other sources. To begin 
 with, its observations were too much narrowed by the 
 casual character of the evidence: most important links 
 in recorded history are missing through the caprice of 
 time, indeed whole periods and whole problems are plunged 
 into entire darkness. Surely, in view of these frequent 
 interruptions, common sense prompts the observer to look 
 ' Sir A. Lyall in the Law Quarterly Review, iv. p. 132, 
 
15 
 
 for indications to kindred processes of development instead 
 of trusting to mere guesswork and inference. Once atten- 
 tion had been directed to that expedient, an immensg 
 perspective opened to the eye, not only in other cases 
 recorded by history, but also in similar traits in the life 
 of half civilized and uncivilized nations accessible to 
 observation in the present. Apart from the powerful help 
 afforded by comparative jurisprudence for the purpose of 
 reconstructing obliterated and unfamiliar forms, the com- 
 parative method of inquiry provides the only possible 
 basis for inductive reasoning in social science and for 
 inquiries as to the laws of social development. Without 
 concealing from himself the enormous disadvantages under 
 which social studies labour in this respect when compared 
 with natural science, Maine held that in order to come to 
 anything like a grasp of recurring principles in legal 
 development, we have to follow in substance the same 
 way as in other branches of study, namely to work out 
 methodical comparisons of ascertained facts. His chief 
 aim was to propagate in the domain of jurisprudence the 
 same spirit and methods which had already given such 
 splendid results in two newly created departments of 
 science — in comparative philology and comparative mytho- 
 logy \ The connexion of all these subjects with a study 
 of India was fortuitous, but it had its meaning in defining 
 the range of Maine's inquiries. These inquiries were directed 
 not to the wide area of the juridical lore of mankind in 
 general, but to the more restricted field of Aryan anti- 
 quities, where the historical material was more immediately 
 bordering on the ethnographical and the facts could be 
 brought together and analysed with greater ease. This 
 limitation of the field had certain drawbacks, which are 
 clearly discernible, for example, in the treatment of early 
 marriage and kinship, and in the stubborn opposition of 
 Maine to the discovery of so-called matriarchal relations ^. 
 Still it had also evident advantages in so far as it lessened 
 
 * Rede Lecture (Village Communities, 3rd ed.). 
 ' Early Law and Custom, 200. 
 
16 
 
 the danger of those haphazard comparisons and hasty 
 generalizations which form the weak side of comparative 
 jurisprudence, as represented, for example, by Post and 
 Kohler in Germany. Altogether, although Maine quite 
 realized the import of the modification brought about in 
 the historical method by the introduction of the comparative 
 element and sometimes spoke of the historical method being 
 ' quickened and corrected ' by the comparative, still it must 
 be noticed that he considered both as equally necessary and 
 intimately connected ^. In this sense he says in the opening 
 lecture on Village Communities : 
 
 ' I may venture to affirm that the comparative method . . . 
 is not distinguishable in some of its applications from the 
 historical method. We take a number of contemporary 
 facts, ideas and customs, and we infer the past form of 
 those facts, ideas and customs, not only from historical 
 records of that past form, but from examples of it which 
 have not yet died out of the world and are still to be 
 found in it ^.' 
 
 It would be out of the question in a general survey like 
 the present to give an account of the many particular 
 points which were suggested to our author by his new 
 departure. I shall just mention a few subjects discussed 
 by him on the lines of comparative jurisprudence with 
 a view to the formulation of historical laws. 
 
 Already on the opening pages of his first book we notice 
 attempts of this kind : 
 
 'It is a known social law that the larger the space over 
 which a particular set of institutions is diflfused, the greater 
 is its tenacity and vitality.' . . . ' There is a law of develop- 
 ment which ever threatens to operate upon unwritten usage. 
 A process commences which may be shortly described by 
 saying that usage which is reasonable generates usage 
 which is unreasonable ^.' 
 
 The sequence of phenomena in the evolution of juridical 
 ideas was taken to follow a certain normal course: first 
 personal commands and judicial decisions by patriarchal 
 
 ' Rede Lecture (Village Gommunitiegj^224). ' Ibid 6 
 
 ' Ancient Law, 17, 19. ' ' 
 
17 
 
 rulers; then customary law expounded and applied by 
 a social and military aristocracy; thirdly, the fixation of 
 these customs in codes as the result of social conflicts^ 
 next, the gradual modification of strict archaic law by help 
 of fiction, primitive equity, and positive le^slation ; later 
 on the rise of general jurisprudence in connexion with 
 the spread of international intercourse and philosophical 
 theories, ultimately scientific jurisprudence, the advent of 
 which has been much delayed by chance influences. Not 
 all societies succeed in passing through all these stages, 
 and their progress from one to the other does not always 
 follow the same lines, but the landmarks on the road are 
 remarkably alike and the general direction unmistakable. 
 The history of testaments and contracts in Roman law is 
 used as a groundwork to illustrate an historical sequence 
 which may be taken as typical for the law of other nations 
 and corresponds to certain ever-recurring requirements. 
 The broad generalization of a gradual development of 
 individual relations from status to contract is made to 
 illuminate the course of law in general, and not only of 
 Roman law. In the book on Early Institutions, the germs 
 of feudalism are traced to economic habits by no means 
 restricted to the Teutonic world, but, on the contrary, 
 best illustrated by Celtic law. The topics which had the 
 greatest attraction for Maine and those in regard to which 
 his ideas, though contested and modified by later researches, 
 have been most fruitful, are, of course, the comparative 
 history of kinship and of property in land. His views in 
 this respect are so well known and so often quoted that 
 I may be allowed to confine myself to mentioning his 
 guiding principle, namely, that the development of law 
 in this domain has to start not from the notion of the 
 individual, of individual rights and duties, but from the 
 notion of the group, first, the kindred, then the village 
 . community, and admitting gradually and with considerable 
 opposition individual rights within its sphere. 
 
 I may say once more that my object is not to analyse or 
 criticize single doctrines, but to determine the points of 
 
18 
 
 view, and I think that even on the strength of our very 
 brief survey we are entitled to state a few propositions 
 as substantial in Maine's teaching, and, at the same time, 
 as material for the conception of comparative jurisprudence 
 even in its present state. 
 
 I. The study of law is not merely a preparation for pro- 
 fessional duties and an introduction to the art of handling 
 professional problems. It may also be treated as a scien- 
 tific subject. 
 
 a. Two methods of scientific investigation may be applied 
 to the study of law : the method of deductive analysis on 
 the basis of abstractions from the present state of legal 
 ideas and rules, and the method of inductive generalization 
 on the basis of historical and ethnographical observations. 
 
 3. In the domain of inductive jurisprudence, law appears 
 as one of the expressions of history, and history is taken 
 in the wide sense of all knowledge as to the social evolution 
 of mankind. 
 
 4. Insomuch as every science ought to be directed to 
 the discovery of laws, that is general principles governing 
 particular cases, the historical method of jurisprudence is 
 necessarily a comparative one. 
 
 I enumerate these articles not because they are new, but 
 because I believe them to be true and am ready to sub- 
 scribe them. They are comprehensive and efficient at the 
 same time and ought to give a lead to many generations 
 of searchers. On my own part, I would perhaps feel in- 
 clined to assign even a larger place to the analytical juris- 
 prudence which seeks to take its stand by the side of 
 political economy, but one has to make a choice of pursuits, 
 and, of course, it is in the field of historical jurisprudence 
 that I have had to work hitherto, and that I intend to go 
 on doing work. It is a fair field and full of promise for 
 all those who believe that law is one of the most charac- 
 teristic, most important, and most definite expressions of 
 social life. 
 
 In studying the subject nowadays we must be more 
 careful in the analysis of single cases, more critical in our 
 
19 
 
 historical investigations, less prompt to generalize and less 
 sanguine of getting quickly to ultimate results in the shape 
 of laws of development. In a word, we ought not onhr 
 to learn from our predecessors but to keep clear of their 
 failings in order to pave the way for our successors. And 
 I hold myself fortunate to be called upon to form a link 
 in the tradition of these studies which, thanks to Maine, 
 has sprung from Oxford. It has always been understood 
 in this country that tradition combined with definite aims 
 is one of the greatest forces of civilization: it lifts the 
 eflForts of man from the restrictions of individual insig- 
 nificance to mighty collective power. Appealing to a noble 
 tradition, which has to be kept up with reverence and 
 zeal, I will ask you, in conclusion, to admit me to your 
 celebrated University as one who wishes, so far as it rests 
 with him, to follow in the footsteps of your great teacher 
 and thinker. 
 
OXFORD : HORACE HART 
 PRINTER TO THE UNIVERSITY 
 
'^s