Ancient Law in the Transition from Family to State

Sir Henry Sumner Maine is a British jurist who is renowned with his theory about the development of the laws which he discussed in his book “Ancient Law”. In his theory, Maine argues that the tools and procedures of the primitive law constitute the baseline of the laws of today’s world. Accordingly, he lays emphasis on the analysis of the intricacies of the primitive laws in order to better understand and effectively interpret the current laws. Maine explains the importance of the analysis of the primitive law as: “If by any means we can determine the early forms of jural conceptions, they will be invaluable to us. These rudimentary ideas are to the jurist what the primary crusts of the earth are to the geologist. They contain, potentially all the forms in which law has subsequently exhibited itself. The haste or the prejudice which has generally refused them all but the most superficial examination, must bear the blame of the unsatisfactory condition in which we find the science of jurisprudence.”

Maine argues that the law evolved in parallel with the evolution of the social relations into more intricate forms, i.e. from family to tribe and states. Accordingly, he thinks that the most primitive form of the law arises from the family. The family demonstrates the most primitive form of the law, because, as we can see especially in Roman Law, the head of the family bears a broad authority over the family which may represent the legal order and authority in society. In this regard, the concept of pater familias is a good example. (Maine attaches a special importance to Roman Law in his analysis of the history of law.) In Roman Law, pater familias, the father of the family, was the head of the family and held extensive powers over several aspects of the family; and this power was generally called “patria potestas”. Under patria potestas, pater familias was acting as the ultimate decision maker in the family. Nevertheless, along with this broad authority, he was also responsible for taking care of his children, and accordingly, ensuring a good future for the country. In the light of his powers, duties and responsibilities, we can see that pater familias was representing the government of a state in a family to some extent. He was governing his family as a king governs his country. I prefer to compare the role of the pater familias to that of a king, as pater familias, under patria potestas, was even authorized to decide on the lives of the family members. Accordingly, pater familias had the authority to implement laws as well as to act as a judicial authority with very extensive powers.

Within this framework, Maine argues that the most primitive form of communities is the big family where a big number of family members, including the grandchildren, live together. The most essential factor in the concept of the big family was the blood relation. Because the members of the family were sharing the same bloodline, they developed an understanding of unity as a community. There were no distinct legal divisions in a big family. As is the case with pater familias, in the structure of the big family, the head of the family constituted the governmental body. The head of the family held extensive powers and he did not act only as a lawmaker but also a judicial authority in a similar vein to the pater familias.

In the course of time, these families started to establish closer relationships with other families, and especially with the commencement of the agricultural activities, the transition from the big family to the tribes was completed. Nevertheless, these tribes had neither a governmental authority as in a state nor a legal system. There was a social order to some extent that was determined by the heads of the families constituting the tribe; but the said order was still highly primitive and lacked legal institutions. At this point, we cannot exactly determine whether the families were living in tribes in peace, or as Thomas Hobbes argues, in a chaotic situation; nonetheless, at least, they had constituted some bonds0 between each other that may have formed the subject and baseline of the laws to be created at a later stage of humanity.

The transition from the tribes to the state, as I discussed in some previous articles, was heavily analyzed by famous philosophers, John Locke and Thomas Hobbes. Here, I will not touch on their analysis of the reasons of the transition to the state and the establishment of the governments. Maine, too, developed arguments regarding the said transition, however, instead of focusing on the motivations of the people in creating governments, he discussed how this process may have taken place. I will not refer to these possibilities here (for a detailed analysis of this transition, please refer to Lectures on the Early History of Institutions written by Maine). The most important development in this transition is that with the dawn of states, the power of the heads of the families dramatically diminished. It does not mean that the heads of the families could not exercise any authority over their families; however, as states started to regulate family relations, the issues over which the head of a family could exercise his powers decreased in number as a result of the state regulations. In Ancient Law, Maine describes the development of law in this period as: “When primitive law has once been embodied in a Code, there is an end to what may be called its spontaneous development. … It is impossible to suppose that the customs of any race or tribe remained unaltered during the whole of the long – in some instances the immense – interval between their declaration by a patriarchal monarch and their publication in writing. It would be unsafe too to affirm that no part of the alteration was affected deliberately. … A new era begins, however, with the Codes. Wherever, after this epoch, we trace the course of legal modification we are able to attribute it to the conscious desire of improvement, or at all events of compassing objects other than those which were aimed at in the primitive times.”

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