Ancient Law (1861). This seminal work presents a preliminary formula -
tion of what has arguably become the central dichotomy of social science –
the notion that traditional societies are initially bound together by bonds
of status (e.g. kinship or hierarchy), while modernization entails their
replacement by (impermanent, voluntaristic) relations of contract.
44
Although Maine’s treatise was published a mere two years after The
Origin of Species, his central ideas pre-dated his acquaintance with
Darwin’s work. As J. W. Burrow has shown, the volume was intended as
a corrective to Benthamite utilitarianism, and was inspired by the histori-
cism of German philology. Nevertheless, Maine’s book was read by a
Darwin-primed audience, and he hoped it would become the cornerstone
of a new evolutionary science. Like a fossil-hunting geologist, Maine
showed his readers how to sift the surviving evidence from various textual
strata. From such fragmentary materials, he contended, it was possible to
reconstruct the fundamental structures of law, custom, and community in
the past. Even more ambitiously, it was possible to infer the process by
which these structures had changed (or failed to change ) from one era to
the next. In Ancient Law, Maine pioneered what he would later call “the
comparative method.” By juxtaposing the history of two or more societies
at a considerable distance in time or space, the search for common
features could provide a basis for inferring either a common genealogical
origin and/or a comparable evolut ionary stage.
45
Indeed, Maine ’s book is not so much a conventional history as an
archaeological excavation of Roman jurisprudence, designed to identify
the moment when individuals and events broke out of their customary
(status-bound) enclosures, and narratives worthy of (contract-making)
record commenced. Maine seeks to expl ain why such narratives (and such
contracts) had not arisen in places like India, and why history was the
44
M. E. Grant Duff, Sir Henry Maine: A Brief Memoir of his Life (New York, 1892); George
Feaver, From Status to Contract: A Biography of Sir Henry Maine, 1822–1888 (London,
1969); as well as George Feaver, “The Victorian Values of Sir Henry Maine,” in
A. Diamond (ed.), The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal
(Cambridge, 1991), 28–52; Henry Maine, Ancient Law: Its Connection with the Early History
of Society and its Relation to Modern Ideas [1861] (n.p., 1986).
45
Burrow, Evolution and Society, 139–40. In Victorian social science (as in Victorian biol-
ogy) there was intense debate as to how far such common features should be interpreted as
products of shared genealogies, or as indications of two unrelated societies following
parallel evolutionary tracks. The distinction can be framed as one between “trees” and
“ladders.” Thomas Trautmann, Aryans and British India (Berkeley, 1997). On this point,
Maine was ambiguous or, more likely, intent on having it both ways. The argument is that
some branches of the tree rise up the ladder more quickly than others. In Lewis Henry
Morgan and the Invention of Kinship (Berkeley, 1987), 179–86, Trautmann makes the case
that Maine’s thinking was explicitly evolutionary, although probably not Darwinian, at the
time when he wrote Ancient Law.
Henry Maine and imperial racial divergence 227