3 - ‘ANCIENT LAW’

Summary

Maine was thirty-nine years old when Ancient Law was first published in 1861, and the reader of its pages soon gains an impression that the book is the product of sustained reflection and the gradual development of generalisations over a period of time. The style of writing, just as much as the content of the book itself, suggests from the start that it is not so much a work of logic as an attempt at synthesis in which the author finds a place for many of the concerns which have been considered in the preceding chapters. Yet the breadth of these concerns has never been adequately reflected in the ‘orthodox’ response to Ancient Law. We have seen that the conventional interpretation begins with the observation that Maine reacted against the analytical statements of the utilitarian jurists; for the most part he did this by revealing that their notion of law was not of universal application but related almost exclusively to industrial societies where, for example, sovereign power could be clearly identified. Maine revealed the full extent to which Bentham and Austin had been misguided when he explained law in the sort of evolutionary terms which were so attractive to mid-Victorians. The phases which he revealed have been described in different ways by different commentators but, in most cases, six stages have been recognised in his treatment of the Indo-European societies which were of primary concern to him.