Ancient Law

Contents

1. Prefaces 5 min 5

   Maine’s four prefaces, printed newest first. The first edition’s preface (1861) states the aim: to trace the earliest ideas of mankind as reflected in ancient law, using Roman law as the typical system, and to examine the Roman jurists’ theories of natural law. The third (Calcutta, 1865) notes that Russian emancipation and American abolition have dated his remarks on serfdom and slavery. The fifth (1873) corrects his account of customary law by pointing to Village Communities (1871). The tenth (1884) concedes that research into “savage” societies has revealed forms older than the patriarchal state.

2. 1 Ancient Codes 31 min 9

   Maine traces law from its earliest form. Homeric kings gave themistes, single judgments believed to be inspired by the goddess Themis, not general laws. As kingship declined, aristocracies and priesthoods became the guardians of unwritten custom. Codes such as the Twelve Tables followed the spread of writing and popular pressure on those monopolies. Maine criticises Bentham and Austin’s command theory as false to early law, argues that English case law is written law, and contrasts Rome’s early code with Hindu law, which he says was written down only after irrational usage had hardened into caste.

3. 2 Legal Fictions 35 min 6

   After the codes, only the rare progressive societies keep developing their law, and Maine confines himself to them. Social needs always run ahead of law, and three agencies close the gap in a fixed order: legal fictions, equity and legislation. A fiction alters a rule while pretending it is unchanged; Maine’s examples are English case law, where judges claim only to declare existing law, and the Roman responsa of jurists who claimed only to interpret the Twelve Tables. He explains the richness of Roman legal principle by the jurists’ freedom to argue hypothetical cases, and notes that statute law became important only under the emperors.

4. 3 Law of Nature and Equity 44 min 6

   Maine asks how Roman equity arose. The ius gentium began as a practical body of rules common to the Italian peoples, used by the praetor for disputes involving foreigners and at first despised by Romans. Under Stoic influence, lawyers identified it with the Greek law of nature, and the praetor’s annual edict became a means of bringing the civil law closer to that ideal. Maine traces the edict from the praetor peregrinus to its fixing by Salvius Julianus, and compares Roman equity with English Chancery. Both, he says, eventually harden, and both justify progress as the recovery of a lost perfection.

5. 4 The Modern History of the Law of Nature 1 h 1 min 10

   Maine weighs the modern influence of the law of nature. In Rome it guided reform without endangering existing law, playing a role like Bentham’s principle of utility. In France, lawyers who served the crown and lived with chaotic local customs embraced it, and Rousseau turned it into the state of nature, a standard for condemning all institutions, with results Maine blames for the excesses of the Revolution. He traces the doctrine of human equality from Ulpian to 1789 and the American Declaration. He then derives international law from the ius gentium through Grotius, and explains its dependence on territorial sovereignty, an outgrowth of feudal landholding.

6. 5 Primitive Society and Ancient Law 1 h 30 min 15

   The book’s central chapter sets aside natural-law, social-contract and utilitarian theories for evidence from archaic law, which supports the patriarchal theory. Early society consisted of families under an absolute male head, not of individuals, and adoption let groups absorb outsiders until territory replaced kinship as the basis of politics. Maine examines Roman patria potestas over persons and property and its slow decline, agnatic kinship, the perpetual guardianship of women, marriage and the wife’s position, and slavery within the family. He concludes that progressive societies have moved “from Status to Contract”.

7. 6 The Early History of Testamentary Succession 1 h 9 min 9

   The history of wills illustrates the historical method. Maine denies that testamentary power is natural: in early societies, inheritance passed within the family and wills came later. The Roman inheritance was a universal succession in which the heir continued the dead man’s legal person, because the family was a corporation that never died. Hindu adoption and family rites play the role of wills. Early Roman wills were made before the clan assembly or by a sale of the “family” with copper and scales. Through the praetor’s seven-seal will and jurists’ reforms, wills became secret, took effect at death and could be revoked.

8. 7 Ancient and Modern Ideas Respecting Wills and Successions 44 min 11

   Maine contrasts ancient and modern ideas of the will. Roman testaments were valued as a way of providing for a family more fairly than the old civil-law order of intestate succession, which excluded emancipated sons and could send an estate to the gens; hence the Roman “horror of intestacy”. The modern idea of the will as a means of unequal distribution came from feudal primogeniture. Maine traces primogeniture to Carolingian benefices and explains its spread by a regression to patriarchal forms of rule, which lawyers trained in Roman law then converted into individual ownership. He closes with Celtic, Hindu and Muslim variants of succession to chieftainship.

9. 8 The Early History of Property 1 h 32 min 15

   Maine examines the theory that property began with occupancy, the seizing of ownerless things. He traces the Roman rule into the modern law of war and of discovery and criticises Blackstone's account of first possessors, arguing that ancient law knew groups, not individuals. Property began as joint ownership by families and kin groups, as Indian, Russian and South Slav village communities show, and individual property emerged as separate rights were disentangled from collective ones. He then surveys devices that freed property for circulation: classes of property such as res mancipi, usucapion, collusive suits, possessory remedies, equity, and the emphyteusis, which he links to the fief.

10. 9 The Early History of Contract 1 h 37 min 18

    Modern society is distinguished by the large field it leaves to contract, but Maine argues that contract came late. Early law bound people by status and enforced promises only when wrapped in ceremony. From the Roman nexum, in which conveyance and contract were one, he traces a sequence: stipulation, the literal and real contracts, and finally the consensual contracts of sale, hire, partnership and agency, in which agreement alone binds. He then argues that the Roman law of obligation supplied the language of the social-contract theory, of moral philosophy after Grotius, and of Western theology. Feudalism, finally, mixed archaic usage with contract.

11. 10 The Early History of Delict and Crime 50 min 11

    Ancient codes are mostly penal, Maine argues, because early law treated injuries as private wrongs (torts) compensated by payments, or as sins against the gods, not as crimes against the state. Courts began by imitating a private arbitrator, as the Roman legis actio and Homer's shield of Achilles show, and penalties followed the victim's likely anger. A true criminal law grew at Rome as the assembly delegated its power to special and then permanent commissions (quaestiones), with consequences for the death penalty and the classification of crimes. Imperial centralisation and the Church made punishment a duty of the sovereign.