Sir Henry Sumner Maine’s Approach to the Development of the Modern Laws

In my previous article, I mentioned that Sir Henry Sumner Maine argues that the tools and procedures of the primitive law constitute the baseline of the laws of today’s world and that he lays emphasis on the analysis of the intricacies of the primitive laws in order to better understand and effectively interpret the current laws. Further, I illustrated his approach to the connection between the law and the transition from family to the tribe, and eventually, to the state. In this article, I will touch on the different stages of law in Maine’s theory of Ancient Law.

Maine argues that the first stage of the development of the law was the acceptance and implementation of the judgements of the people holding high powers in society, such as kings. In Ancient Law, he describes this legal authority as follows: “Heroic kingship depended partly on divinely given prerogative, and partly on the possession of supereminent strength, courage, and wisdom.” Once the transition from tribe to state was completed, at the first stage, the laws were determined by these authorities. These people’s judgements and decisions were considered as laws due to the public opinion that the powers of the authorities stem from a divine power, and accordingly, they were above all other rules and norms. Also, as Maine stated, the divinity of these laws was supported with their creators’, i.e. sovereign authorities’, outstanding attributes that cannot be possessed by a common person. Nevertheless, as the divinity attributed to the kings and governors has faded away, the influence and validity of their judgements, too, dramatically decreased.

At the end of the time of the kings and powerful governors, a new lawmaker appeared: aristocrats. (At this point, it should also be noted that this transition did not follow a common path in whole world. While kings may have been living in their golden ages in some civilizations, aristocrats may have been exercising their administrative powers in other civilizations. Nevertheless, regardless of the chronological order of the events, this transition is likely to have appeared in almost all civilizations at some point.) Maine describes this transition as follows: “Gradually, as the impression of the monarch’s sacredness became weakened, and feeble members occurred in the series of hereditary kings, the royal power decayed, and at last gave way to the dominion of aristocracies. … At all events from an epoch of kingly rule we come everywhere in Europe to an era of oligarchies; and even where the name of the monarchical functions does not absolutely disappear, the authority of the king is reduced to a mere shadow.” During this time, aristocracies implemented and executed the law. Maine argues that aristocracies implemented the law in a similar way with kings, nevertheless, they did not follow the exactly same path with kings’ approach to the administration of law and creation of judgements. As mentioned above, kings’ powers in creating laws were believed to originate from a divine power; on the contrary, aristocracies did not have to justify their judgements with having a superior power originating from a divine source. Instead, in Maine’s own words, their method was “to monopolise the knowledge of the laws” in order to create the superiority needed to create and implement the laws in society.

Next stage of the law is legislation. At this stage, the laws are now written and known by public. Maine argues that the Roman Law, which may be the most famous and remarkable legal system at this stage, had its value not because it was structured in a very clear and precise manner with great classifications, but because it was open to public and everybody was able to find out his/her obligations and rights. The laws were not exclusively known by aristocracies, they were certain, stable to some extent, and most importantly, publicized.

Maine indicates the importance of this stage as follows: “Among the chief advantages which the Twelve Tables and similar codes conferred on the societies which obtained them, was the protection which they afforded against the frauds of the privileged oligarchy and also against the spontaneous depravation and debasement of the national institutions.” Maine’s analysis shows a different aspect of the law to us. In some of the previous articles, where necessary, I mentioned the theories of Thomas Hobbes and John Locke regarding the creation of governments. In both of these philosophers’ theories, we see a common pattern: a desire to reach a better situation. People created governments to have better lives; according to Hobbes, with a desire to escape from chaos; and according to Locke, with an intention to use rights and liberties more efficiently. Indeed, the creation of governments greatly improved the life quality in society. But, if governments have unlimited powers, then living in those conditions may be even worse than living in a chaotic state before the emergence of governments. At his point, as Maine demonstrates, written laws functioned as a control mechanism over the governments. Accordingly, the law, in addition to the governance and regulation of all aspects of social life, has one more function: balancing the power between the people and the governments.

In my opinion, when people think about the general concept of laws, they tend to see only its functioning as a regulatory tool for our lives, and we may sometimes think that the laws are regulating our lives excessively, to the smallest detail. But we generally ignore the fact that the laws are of great importance for a well-functioning government. As Maine shows, in the third stage of the development of law, the written laws made sure that governments do not have unlimited power over society and the authority to change laws whenever they want or apply laws on an unequal basis. Accordingly, we can conclude that the laws are regulating the governance of society as much as they regulate the society itself.

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