[author]LI Hongji

[content]

The Evolutionary Landscape of Contractual Society: Social Theory Behind Maine's Ancient Law

Author: Li Hongji, Boya Postdoctoral Fellow, Department of Sociology, Peking University

Abstract: As a classical social theorist, Henry Maine was imbued with the intellectual temperament of 19th-century social evolutionism. His evolutionary thought departed from the premise that the essence of modern society could not be understood from its present state alone, but rather by returning to the evolutionary course of its ancient law and society. Simultaneously, distinguishing himself from the prevailing social evolutionism of his time, law became Maine's crucial lens for observing social change. Based on this, Maine delineated the types, characteristics, and driving forces of societal evolution. Under the evolutionary trend "from status to contract," progressive societies eventually incubated modern contractual society. However, in his later years, Maine recognized the real crises facing modern society. More importantly, Maine's evolutionary thought reveals his profound reflections on ancient and modern societies, as well as Eastern and Western civilizations. Maine's social theory holds significant importance for a deeper understanding of classical Western social thought and for the development of legal and social theory in China.

Keywords: Henry Maine; Legal Evolution; Social Evolution; Ancient Law; Contractual Society

1. Introduction: Maine's Thought in the Vista of Social Theory

In the rise of classical social theory, the evolutionary thought of the 19th-century jurist Henry Maine holds a distinct position, playing a role, to some extent, in bridging earlier and later ideas. On one hand, Maine critiqued the concepts of social contract and rational individuals inherent in traditional natural law thought, thereby drawing the historical study of ancient societies into the purview of social thought. Scholars have already pointed out the significant value of Maine's ideas in the emergence of natural law and social theory (Li Meng, 2013; Li Rongshan, 2019). On the other hand, through his interpretation of the transition "from status to contract," Maine revealed the substantive differences between ancient and modern societies. As understood by sociologists like Edward Shils and Niklas Luhmann, Maine's research on traditional and modern societies became an indispensable component of early social thought (Diamond, 1991: 143-178; Luhmann, 2013: 50-56). Maine's profound insight into society was inseparable from his unique understanding and in-depth analysis of law. Therefore, in Maine's social thought, law became an important medium for understanding ancient and modern societies.

Law is the bedrock of Maine's social thought. More importantly, however, the social order, legal institutions, and even conceptual frameworks within Maine's consciousness are understood as constantly evolving. He explored the evolution of ancient law within social history, thereby sketching the transformations in societal forms and their inherent tendencies. It cannot be ignored that Maine's evolutionary thought bears the hallmark of 19th-century evolutionism and shares considerable intellectual commonalities with evolutionary thinkers such as Spencer and Darwin. Consequently, situating Maine's thought within the 19th-century tradition of evolutionary thought helps to further understand why Maine's evolutionism came to be regarded by scholars like Burrow and Stein as the intellectual essence of legal and even social evolution (Burrow, 1966: 178; Stein, 1980: 89-98). In view of this, the key to understanding Maine's social thought lies in reconstructing his vision of legal and social evolution, especially the genesis of modern contractual society. This allows us to more clearly comprehend Maine's critique of natural law, his intellectual contributions to social evolutionism, and his reflections on the 19th-century societal evolution and civilizations of Britain and India, thereby seeking a unique path for contemporary Chinese social theory and legal development.

2. The Ancient Evolutionary Landscape of Society and Law

2.1Social Evolution and the Origin of the Family

Nineteenth-century social evolutionary thinkers posited that society was not always governed by static structures. Both Comte and Spencer believed that human society had undergone change and development, based on which they distinguished between social statics and social dynamics (Ritzer, 2014: 103-143).

Maine's theoretical starting point for discussing social evolution lies in two stages of early societal change. In Ancient Law, published in 1861, he stated:

When primitive law has once been embodied in a Code, the spontaneous development of law is, for the future, arrested… With the Codes commences an era of new juridical development… This is a wholly different objective from that which was sought in the primitive epoch. (Maine, 1996: 13)

Here, Maine attached great importance to the social significance of codes. A code signified that legal reform would unfold in new ways, but more crucially, it marked a watershed between primitive and ancient societies. Primitive society, influenced by custom and other traditional norms, was highly conservative, developed slowly, and its law evolved spontaneously. In contrast, ancient society gradually prospered, writing emerged, ancient codes were born, social strata progressively differentiated, and the development of law began to be influenced by human agency.

Commencing with ancient codes, the various peoples who had bid farewell to primitive society embarked on two distinctly different paths: progressive societies and stationary societies. Progressive societies advanced significantly, and law gained new space for change. In stationary societies, conservative religion and custom dominated society, and social development was slow or even stagnant. Progressive and stationary societies were ideal types proposed by Maine, yet the historical classification of societies was unbalanced. In the 19th century, societies like India and China remained static, while only a few, such as England and ancient Rome, escaped traditional fetters and embarked on the path to modernization. It was precisely the scarcity of progressive societies and the prevalence of stationary ones that led Maine to a historical judgment: stationary societies are the norm, progressive societies the exception (Maine, 1996: 13-14).

Maine further explored the family in ancient society. Although contemporaries like Spencer and Comte acknowledged the family's important status in society, Maine, based on ancient law, depicted the family in both micro and macro transformations. From a micro perspective, the family was the foundation of social structure. The family Maine discussed was the patriarchal family, which emphasized agnatic (kinship through the male line) rather than cognatic (blood) relations. The authoritative leader of the family was the paterfamilias (father of the family), and patriarchal power delineated the scope of family and kinship. A kinsman by blood, once removed from the dominion of patriarchal power, would also be considered an outsider (Maine, 1996: 34, 84-85). From a macro perspective, the family was the beginning of primitive societal evolution, forming a macro-order through the development of the gens (clan), tribe, and political community. The family was the earliest form of human society; a family was a small society. As the family population increased and the scale of family society expanded, gentes were formed. Several gentes united to form a tribe, and an alliance of multiple tribes formed a political community. This political community manifested historically as states, republics, and other types (Maine, 1996: 73-74). Maine referred to this as "a system of concentric circles, developing outwards from the same starting point" (Maine, 2021: 104).

In the stages of the gens, tribe, and political community, kinship relations within the family became an important means of communication and stabilization of social order (Maine, 1996: 37-38, 76-77, 85). The "family," as the foundation of social structure, led social relations towards "familialization" and "consanguinization." Blood relationship became the basic bond of social solidarity, determining cooperation or hostility between gentes and tribes. Maine incisively summarized the consanguineous characteristic of social relations: "All who are not united with you by blood are either enemies or slaves" (Maine, 2012a: 112). If a foreigner with no blood ties wished to join a specific social community, they could only become a putative kinsman through the fiction of blood relationship, accepting the jurisdiction of the paterfamilias (Maine, 1996: 85). Simultaneously, the familialization of social relations also shaped early political communities. From his studies of Greek and Roman city-states, Teutonic aristocratic rule, Celtic tribes, and Slavic gentile communities, Maine concluded that in different societies, not all members of a city-state or tribe were descendants of the same ancestor, but "all permanent and cohesive early societies either derived from a common ancestor or assumed themselves to be from a common ancestor" (Maine, 1996: 75). Furthermore, Maine delineated an important trajectory of social evolution, namely, the development of social association from being based on blood relationship to being based on territorial contiguity (Maine, 1996: 73-74). Modern sovereign states abandoned the basis of blood relationship, forming a concept of the state based not on persons or families, but on territory.

Ancient society, founded on the patriarchal family, became the bedrock of Maine's social thought, but this notion faced successive critiques from anthropologists in the mid-to-late 19th century. His opponents, McLennan and Morgan, argued that Maine had inverted the evolutionary sequence; the patriarchal family was not the earliest social unit, as the family was derived from the gens (Mclennan, 1865; Morgan, 1983). In reality, the question of social origins in the mid-to-late 19th century was fraught with uncertainty, with no decisive evidence to dispel the historical mist. Maine, fearing getting lost in the historical jungle, cautiously drew a caesura and turned to social theory for assistance (Maine, 2021: 93). Maine believed that early social structure originated from the "heroic model." A brave and powerful hero, along with his kinsmen and retainers, created the earliest lines of descent and lineage, thereby establishing the patrilineal tradition (Maine, 2021a: 134). In effect, the "heroic model" bypassed historical investigation into social origins, determining stable social types through natural selection and survival of the fittest. Before the birth of the family and the gens, various forms of structures existed, but among them, the most superior specific type overcame the communal disadvantages caused by gender inequality, eventually forming the patriarchal family and later the gens. Simultaneously, Maine cited Darwin's The Descent of Man to confirm the origin of polygynous patriarchal society, thereby sharply contrasting with the view proposed by McLennan, Morgan, and others that "modern social order began with a modified form of promiscuity" (Maine, 2021: 98-99). Although the "heroic model" provided a theoretical explanation for social origins, it could not explain why social institutions in different parts of the world were highly similar. Maine further employed imitation theory to explain structural uniformity. He argued that the family and gens under the "heroic model" became objects of learning and crystallisation for other tribes or societies in their interactions. Due to human nature, other neighboring societies imitated more advantageous systems, adopting, through fiction, the rules and customs within structures such as tribes, gentes, clans, and village communities (Maine, 2021: 96, 134-136).

Through heroism and imitation theory, Maine sought to demonstrate that while the family might not have been the earliest social model, it was the earliest established stable social structure. The birth of this social structure was strongly influenced by the concept of natural selection and became universalized through imitation theory. Under the questioning of anthropologists, Maine became aware of the complexity of primitive society and consolidated his theory of the familial origin of social evolution.

2.2 The Process and Sociality of Legal Evolution

Once the social background of legal evolution became apparent, its historical process unfolded. In the evolutionary picture of Ancient Law, legal development went through six important stages. Law before the birth of codes experienced three crucial phases: judgments, customary law, and ancient codes. After the birth of codes, the codes of ancient progressive societies underwent three stages: legal fiction, equity, and legislation.

Initially, Maine, primarily based on his examination of kings in the Homeric epics, proposed the important view that "law originates from judgments, and judgments are based on divine inspiration," believing that the earliest form of law was individual, separate adjudications (Maine, 1996: 2-3). In Early Law and Custom, Maine elaborated on this more deeply. Hindu law absorbed and modified Indian customary law, leading him to believe that the Laws of Manu had a dual origin: a small part being a system of precedents, and the larger part being Hindu scriptural texts. Through historical comparison of Eastern and Western civilizations, Maine realized that Homeric royal judgments originated from custom, but were conceptually regarded as divinely inspired (Maine, 2021: 21-22, 79). However, Maine did not thereby negate the previously delineated evolutionary stages. Although Maine recognized that custom was an important basis for judgment, and even implicitly acknowledged that "custom precedes judgment," the judgment stage remained the earliest evolutionary phase. The reason was that the formation of the customary law stage did not depend on how early custom appeared, but on social structure. Maine emphasized that in the judgment stage of legal evolution, custom could not yet be called law, but was merely a practice or social atmosphere. Only in the era of customary law, when custom became a substantive collection, its authenticity guaranteed by the memory of a specific aristocratic class, did custom thereby become universally applied law (Maine, 1996: 4-8).

The apex of early law was the era of ancient codes. In Maine's view, the most important ancient code was the Roman Twelve Tables. Besides this, the Greek Laws of Draco and the Irish Brehon Laws were models of ancient codes. The importance of ancient codes lay in their public nature. In the era of customary law, law was kept secret, and the aristocracy enjoyed the right of interpretation, making it easy for law to become a private tool of the nobility. Public codes, however, could prevent the aristocracy from fabricating and arbitrarily interpreting laws, thereby safeguarding the status of the common people.

The appearance of ancient codes marked the advent of a new era of legal evolution: "Codes and Instrumentalities." Legal evolution based on codes was achieved through instrumentalities that reconciled codes with progressive societies. These instrumentalities were legal fiction, equity, and legislation. In Maine's view, legal fiction refers to a change in the interpretation and application of law while the legal text remains unchanged. English case law, Roman legal responsa, and the institution of adoption are all important forms of fiction. In the early era of codes, fiction promoted evolution in a gradual manner, avoiding conflict between the demands of progressive societies and conservative thought. In more advanced law, legal fiction was replaced by the instrumentality of equity. Equity refers to individual principles outside the letter of the law that can override or even replace the function of legal provisions, as manifested in Roman "praetorian law" and English equity law. Maine emphasized that the principles of equity are those "which all law ought to follow" (Maine, 1996: 17). The authority and coercive force of equity derived from moral norms or universal values that transcended law, such as natural reason, equality, and symmetry (Maine, 1996: 16-21). It was not until the appearance of legislation that law began to take on the rudimentary form of modern law. Maine briefly stated that legislation is law made by a socially recognized legislative body. During the Roman imperial period, legislation gradually replaced equity as the primary means of improving law. Ultimately, Roman law formed a complete system with laws, interpretative bureaus, courts, and legal doctrines (Maine, 1996: 17, 25). Although Maine discussed the later development of Roman law, he did not sever the connection between ancient and modern law; indeed, it can be said that he saw a continuous process of development from ancient law to modern law. Under the influence of the instrumentalities of progressive societies, Maine detailed the specific changes in Roman private law, such as the shift from intestate succession to testamentary succession; the development from common property rights to private property rights; and the transition from primitive contract to modern contract.

Most importantly, in Maine's evolutionary landscape of law, the division of legal stages is based on society, not on law itself. The evolutionary process of early law reflects the socialization of law. Royal judgments were influenced by divine will and custom; law in the era of customary law was monopolized by the aristocratic class; and law in the stage of ancient codes gradually shifted from being exclusively enjoyed by kings and dominated by aristocrats to being publicly accessible to the entire society. After the birth of ancient codes, fiction, equity, and legislation became instrumentalities for coordinating conservative law with progressive society, primarily functioning to balance the evolutionary rates of law and society.

Stein believed that Maine's theory of legal evolution uniquely wove together pre-existing concepts like fiction, themistes, and contract (Stein, 1980: 89-98). However, merely considering the independent evolution of law, without considering the foundation of social evolution, is unhelpful in finding the thread that integrates Maine's intellectual resources. The evolution of law is always influenced by society; the difference lies in whether these influences are weak or strong, whether society influences directly or through mediating instrumentalities.

2.3 Evolutionary Dynamics and the Universal Spirit of Progress

From the perspective of evolutionary dynamics, Maine solemnly distinguished between the law and social order before and after the birth of codes. Once ancient society possessed codes, law would be influenced by conscious desires for improvement, no longer developing spontaneously as in primitive society (Maine, 1996: 13). As previously stated, primitive society before the birth of codes was characterized by spontaneity and randomness; the patriarchal society under heroism and imitation theory was also the result of the law of the jungle and spontaneous social selection. Simultaneously, royal judgments reflected the will of gods and religion; customary law was not created but discovered by patriarchs and elders.

Ancient progressive society after the birth of codes was influenced by ideas conscious of improvement. Maine greatly valued the connection between ideas and progress, even equating "progress" with "new ideas" (Maine, 2012a: 111). In other words, evolution involves not only changes in social mechanisms and structures but also changes in ideas. Here, Maine exhibited a dynamic theory approaching that of Comte, emphasizing ideational progress, rather than Spencer's, which focused on structural and functional dynamics (Ritzer, 2014: 128).

In specific discussions, Maine identified two important ideas that propelled legal evolution: natural law and Bentham's utilitarianism. Ancient Greece created natural law, setting for law the pursuit of "simplicity, symmetry, and intelligibility" (Maine, 1996: 33). For Roman law, natural equity was an important driving force for its development. Spencer also captured the subtlety of Maine's thought: "The contrast between the less recognition of happiness as an end, and the wider recognition of natural equity as an end, which has obtained from Roman times downwards, has continued" (Spencer, 2017: 65). The evolutionary idea aimed at human happiness was embodied in the 19th-century thought of Bentham. Bentham's principle of "the greatest happiness of the greatest number" and the principle of expediency guided English legal reform in the right direction and became powerful reasons for legal change (Maine, 1996: 43-45, 6). Maine further explained the progressive nature of this principle of social happiness: "What we call expediency and the greatest happiness are, in reality, the impulse to change, merely under different names" (Maine, 1996: 68).

However, progressive thought is like a sharp double-edged sword; it can guide social change but may also cause irreparable losses. Therefore, Maine added a prohibition: progressive thought can only play a remedial role. Progressive thought must never become a weapon of social revolution, and legal reform must never become the driver of social development (Maine, 1996: 44). To Maine's regret, modern French natural law broke through this limitation. Under the alliance of French jurists and the Capetian rulers, natural law became an ideological weapon guiding legal and social change (Maine, 1996: 47-49).

After comparing Eastern and Western legal and social development, Maine realized that all progressive ideas have a unified intellectual source: the ancient Greek spirit. He made the following assertion:

To a small people, whose place of origin was but a speck of land, was born the movement of advance without falling back, the principle of progress that tends to create through destruction. That people was the Greek people. Setting aside the blind forces of nature, there is no movement in the world that did not originate in Greece. The ferment spreading from this source has one by one permeated every race, stimulated the vitality of all great progressive races, producing consequences in accordance with their genius, consequences certainly more far-reaching than those displayed by Greece itself. (Maine, 1875: 38)

For Maine, the spirit of progress originating from Greece possessed the characteristics of destruction, creation, and advancement. Even setting aside these fundamental traits, Maine still emphasized its contagious power, "like an epidemic." "Once a society comes into contact with it, it spreads like an infectious disease" (Maine, 1875: 38). Maine extolled the Greek spirit of progress to an unparalleled degree, believing that "Roman law, German philosophical wisdom, French Enlightenment order, English political genius," and other quintessence of Western European thought were all stimulated by the Greek spirit. Consequently, the vitality of each nation was unleashed, leading to civilizations based on their respective endowments (Maine, 1875: 39). Thus, Maine's concept of the origin of evolution demonstrated the universality of social and even legal evolution. Simultaneously, his evolutionary concept, embedded in history and comparison, also emphasized the uniqueness of each civilization.

3Modern Imaginings and Reflections on Society and Law

3.1 Law in Social Evolution

Legal sociologist Roger Cotterrell once pointed out that classical social theorists such as Marx, Durkheim, and Weber often "regarded law as a key marker, element, or medium of humanity's entry into the modern world" (Sarat, 2011: 17). For Maine, law was endowed with an irreplaceable status in the march towards modern society.

In Maine's evolutionary landscape, progressive society, as an exceptional case, is the core of the ancient societal evolutionary process because it can incubate a modern society. Within progressive society, Maine conceived of the ideal and dangerous states of law and society. He directly described this ideal state:

The needs of society and the opinions of society are often, more or less, in advance of "Law." We may come indefinitely near to the closing of the gap between them, but the ever-present tendency is to reopen it. For Law is stable; and the society we are speaking of is progressive. The greater or less happiness of a people depends on the degree of promptitude with which the gulf is narrowed. (Maine, 1996: 15)

In this passage, Maine addressed the dynamic relationship between law and society. The evolution of law and society are closely related, with social development slightly outpacing legal development.

Maine's ideal state of the relationship between law and society is built upon the evolutionary landscape of society and law. On the one hand, Maine envisioned a binary legal structure of "Code Instrumentalities." The Code symbolized a stable structure, while the instrumentalities maintained the variability of law. As society developed and changed, the stable Code, through the updating and iteration of these instrumentalities, was altered to respond to social opinion, thereby ensuring a reconciliation between the stability and variability of law. On the other hand, Maine envisaged society as a unified whole. In different stages of legal evolution, Maine pointed to the political entities and order behind the law, but he subsumed political, religious, and other elements into a unified society. For example, the alliance of religion and kings became the social basis for the birth of law. The sovereign state behind the age of legislation created the basic social order. As Luhmann stated, legal social thinkers like Maine and Durkheim viewed law and society as two independent variables, their changes placed within the process of evolution and civilization (Luhmann, 2013: 52). But compared to the emphasis classical social theorists placed on elements like religion and economy, the weight of law in Maine's mind was beyond doubt.

Maine warned that once the relationship between society and law deviated from the ideal state, it would encounter crisis. When legal development lagged far behind the pace of social development, Indian society was shackled by the caste system and religious traditions. Conservative law became a social burden, hindering the birth of new ideas and engulfing new civilizational achievements. This is as Maine stated: it is not that civilization developed law, but that law restricted civilization (Maine, 1996: 11-14). Conversely, a society that advanced too far ahead, leaving law far behind, would also trigger a crisis of annihilation. Ancient Greece encountered such a tragedy; Greek law, through philosophical abstraction and refinement, skipped formal legal procedures and terminology, rapidly reaching substantive law. The concepts of right and wrong in natural law became important standards for judicial trials, but judgments often confused law and fact, and legal concepts and procedures were flexibly used in pursuit of justice and perfect verdicts (Maine, 1996: 43-45).

Between conservative codes and progressive society, the instrumentalities of fiction, equity, and legislation became coordinators between law and society, thereby ensuring that legal development lagged slightly behind social development. Law cannot completely ignore social progress, otherwise it will fetter social development. Simultaneously, social development will compel law to respond; otherwise, a fractured society and law will sooner or later produce drawbacks and lead to calamities. Thus, Maine shaped a relationship between law and society: the development of society and law are interconnected, and law responds to social development. The code is like a historical epitome of social evolution, while the legal system constantly follows the pace of social evolution.

Elliott categorized Maine's theory of legal evolution as a social approach. In his view, such evolutionists believe that law is part of social life, and legal evolution is influenced by internal elements of society (Elliott, 1985: 40-46). It is in this sense that Maine's evolutionism binds law and society together, thereby constructing a unique evolutionary thought distinct from general social evolutionism. However, the view that merely emphasizes the passive feedback of law clearly diminishes the value of instrumentalities within the legal order and also overlooks the conscious evolutionary dynamic ideas mentioned by Maine. On the road to modern society, law and society interact, playing an extremely important role.

3.2Towards Modern Contractual Society

Maine's writings do not explicitly depict an ideal modern order. However, the movement "from status to contract," built upon the ancient evolutionary landscape, reveals his aspirations for modern society and law:

The movement of the progressive societies has hitherto been a movement from Status to Contract. (Maine, 1996: 97)

Today, "from status to contract" has virtually become the essence of Maine's thought on legal and social evolution. Most importantly, Maine pointed out the path to the genesis of modern contractual society and its social connotations.

Before the maturation of 19th-century social evolutionism, the primary theory explaining the modern origins of society and law was social contract theory. Maine first realized that a contractual society evolved from ancient society. This meant that modern society did not arise out of thin air, nor did it originate from a "state of nature" as natural law suggested. Maine believed that the "state of nature" was "a human, unhistorical, unprovable state" (Maine, 1996: 66), which could not withstand historical scrutiny. Hobbes's "speculative explanation of the origin of society and government" lacked evidence (Maine, 2012a: 174-175), while Rousseau's theory, with its "fall from a primitive state of perfection," tailored historical phenomena that contradicted the state of nature (Maine, 1996: 50). As discussed earlier, Maine anchored the origin of society in the family and, through historical evolution, constructed the entire process of transformation from family to state. This largely dismantled the narrative of the state of nature, negated the idea that contract created state order, and achieved a conceptual shift: "the state of nature is the social state, and the family state is the earliest social state" (Li Rongshan, 2019: 191).

Furthermore, Maine not only removed the foundation of the state of nature from social contract but also, by critiquing the contractual concept of natural law, brought the discussion of contract back to Roman history. He pointed out that the contractual concept of natural law thinkers originated from Roman law, "which they consciously or unconsciously borrowed from the Romans" (Maine, 1996: 65-67). Locke's view that law originated from social contract could not be separated from Roman law, while Hobbes's conception of natural law deliberately denied the existence of Roman law. For this reason, Maine delved into Roman social and legal history to find the forms and concepts of contract. Through his discussion of Roman contract law, Maine revealed the evolutionary process from primitive contract to modern contract. Primitive contract in Roman law was separated from the Nexum system, becoming an independent contractual institution. Thereafter, primitive contract underwent the developmental stages of verbal contract, literal contract, real contract, and consensual contract. In this process, the importance of ritual and procedure diminished, and the consensus of the contracting parties became more crucial (Maine, 1996: 172-191).

Maine's observation of legal institutions did not stop at institutional change itself. Through his examination of Roman and even earlier societal contractual systems, he revealed important differences between ancient and modern societies. He pointed out that primitive society had almost no trace of contract, whereas the more modern a society, the more widespread the use of contract (Maine, 1996: 172-176). Simultaneously, behind the increasing maturity of the contractual system was the emergence of the independent individual. In early society, the individual was absent; individuals were attached to the family, lacked independent personality and rights, and were thus unable to enter into contracts (Maine, 1996: 72-74). In modern society, individuals possess the inherent spirit of contract, independent will, and freedom of person and property, without being bound by the family. The emergence of the independent individual, in Maine's evolutionary narrative, is represented by the individual's separation from the dependent family:

Primitive society, unlike what is now conceived, was not a collection of individuals. In fact, according to the view of those who composed it, it was an aggregation of families. If the unit of ancient society was the "Family," the unit of modern society is the "Individual."

In the march towards modern society, the ancient social order based on the family gradually disintegrated, and the individual became the basic unit of modern society. This individual-centeredness is also reflected in modern law. Maine, through Bentham's utilitarianism, revealed the individual-centeredness and equality theory of modern legislation (Maine, 2012a: 194). In Maine's view, the utilitarian legislative concept, based on the principle of "the greatest happiness of the greatest number," was founded on the concept of the equality of independent individuals. Because only by being based on the individual can the concept of the greatest number be measured. The supreme power of modern political society is far removed from its citizens; thus, the differences existing among individuals as basic units of society are effaced by the sovereign. Individuals under sovereignty tend towards equality, which becomes a necessary condition for legislation (Maine, 2012a: 195). Of course, Maine did not unreservedly advocate Bentham's utilitarianism; he also noted that the principle of "the greatest happiness of the greatest number" had "serious fractures." Because in the legislative process, it is difficult to determine "what happiness really is and how to promote it, let alone the difficulty of a large group of people reaching a consensus" (Maine, 2012b: 172). His skepticism about collective opinion foreshadowed his later reflections on popular government. Even so, legislation remained highly compatible with the contractual society of modern individuals. Conversely, to construct a modern contractual society, the social value of legislation must be emphasized.

Simultaneously, contract is so important because it can create rights and obligations. This means that rights and obligations can be established through the consensus reached by individuals. This type of contract is a contract between private subjects, not a social contract in the sense of natural law. Maine believed that the independent individual is a product of social evolution, an individual who emerged from the family during humanity's march towards modern society, by no means the rational individual existing from the beginning of social origins in the sense of natural law. At the same time, Maine deconstructed a social contract concept manifested as natural rights (Li Rongshan, 2016: 146). He argued that contract incubated from ancient law; contract is not the content of natural rights, but itself creates rights and obligations.

Maine's interpretation of contract and even status society demonstrates his unique thinking about modern order, which also constituted an important benchmark for Spencer's social change. In his later years, in The Principles of Ethics, Spencer repeatedly pointed to the criteria of status and contract as basic characteristics of military and industrial societies, as well as forms of polity (Spencer, 2017: 35, 47, 191). It is noteworthy that Spencer recognized the changes in the state brought about by Maine's idea of "from status to contract." He pointed out that "the daily exchange of services based on consent replaced daily compulsory services," thereby many goals could be achieved through contracts between individuals in society without government involvement. This "decline of the status system and the development of the contract system" confirmed the transition "from military society to industrial society" (Spencer, 2017: 235-236). In reality, the birth of the family heralded the emergence of society, and the state was a product of ancient social evolution. It is through Spencer's interpretation and development that we can more clearly realize the relationship between state and society as understood by Maine: the state is part of society, and the significant changes in modern society lie not in the birth of the state, but in the emergence of contractual society.

In this respect, "from status to contract" became an important way to interpret the transformation of law from traditional to modern, revealing the secret of the ancient-modern shift in social development. It simultaneously contained three trends of social evolution: first, the transformation of the social unit from family to individual; second, the change of social order from family society to sovereign state; and third, the shift of the basis of order from blood relationship to territorial relationship. Concurrently, law exhibited three changes: state law replaced family and customary law, legislation was imposed on individuals, and law embedded individual rights. Based on this, Maine, through his critique of natural law, the evolution of Roman law, and the interpretation of social change, revealed the incubation process of contractual society. He intended to show that all progressive societies will face fundamental social change, and all relations of personal dependence will be broken, to be replaced by contractual relations of independent individuals.

3.3 Modern Society and Evolutionary Reflection

In the more than 20 years after the publication of Ancient Law, Maine consistently believed that an ideal contractual society was practically achievable. However, Maine gradually developed anxieties about British democratic politics and popular government:

As popular governments extend their electoral base, they inevitably tend to pay homage to mass opinion, and consequently have to adopt mass opinion as the standard for law and policy. The evils that may arise therefrom are less the result of extreme radicalism than the offspring of extreme conservatism. (Maine, 2012b: 23)

In reality, Maine's anxiety about popular government stemmed from his view of the conservative nature of society. As early as Ancient Law, he pointed out that Montesquieu overly believed in the plasticity or variability of human nature, while he firmly believed that the vast majority of "human intellectual, moral, and physical capacities" tended towards stability and "possessed enormous resistance to change" (Maine, 1996: 67). This conservative understanding of human society pervaded Maine's later work, Popular Government. In that book, his pessimism was even more evident:

Social immobility is the rule; mobility is the exception. Only a very few can tolerate change, and only they are deeply convinced of the numerous benefits of reform; even for this segment, tolerance and conviction are recent things. (Maine, 2012b: 91)

Maine intended to show that human nature is conservative, and substantive changes in human society are few and far between. For this reason, popular government, by tending towards stable and conservative mass opinion, would instead give rise to extreme conservatism. He immediately identified the ideological root of British popular government as "derived from the hypothesis of the state of nature," rooted in Rousseau's theoretical predicament (Maine, 2012b: 2). The key here is that Rousseau hoped to achieve a democratic state of popular sovereignty, where the "general will" of the people became the will of the state. Influenced by Rousseau's thought, the British government also began to yield to the electorate, even submitting to "vague mainstream opinion" (Maine, 2012b: 85-86).

Maine's diagnosis of the ills of modern society was that Rousseauian theory shaped a popular government that contravened modern contractual society. The crux of the matter is that after the formation of the "state-individual" modern social order in Rousseau's sense, traditional forces completely withdrew, leaving the government to directly face individuals and citizens. Conversely, Maine grasped that both man and society are products of historical evolution; man is independent and rational, but also situated in society and influenced by old ideas such as tradition and custom. If natural law endowed individuals in modern society with independent status, then this individual was precisely one without historical roots, without family, custom, or social foundation. Maine believed that contractual society, based on the individual, was nurtured from the ancient family order; tradition was absorbed into modern society. Even if modern contractual society formed a basic structure of "state-individual," the forces of social tradition and custom still existed. Rousseau's concept of government, however, actually discarded the social background. Thus, the modern contractual society in Maine's eyes was not a complete betrayal of traditional society; traditional customs, to a certain extent, constituted the background of modern social order.

Maine's critique of British democratic politics revealed his conservative views on human nature and the traditional roots of modern society, leading him to be labeled a historical conservative (Kirk, 2019: 312). This precisely reflects the complex unity he exhibited between historical experience and evolutionary concepts. His social and legal thought was caught between extreme evolutionism and a conservative historical view, neither falling into extreme linear evolutionism nor abandoning the pursuit of evolutionism under the sway of pessimistic historicism.

Foremost, Maine attempted to establish an abstract evolutionary theory from the historical experience of law, thereby bridging the conflict and even schism between normative theory and historical description. Vinogradoff, reflecting on Maine's doctrine, summarized the relationship between law, history, and evolution: "In deductive reasoning, law appears as a historical expression, and history, broadly speaking, is the entire knowledge of the evolution of human society" (Vinogradoff, 2009: 313). In short, law is part of history, and history is evolution itself. In reality, Maine did not demand purely objective historical narrative, while simultaneously opposing normative theories that disregarded historical description. He strongly disparaged natural law scholars, analytical jurists, and other pure theorists for ignoring the historical changes of law (Maine, 1996: 68). The anthropologist Lowie, in his book Primitive Society, quoted a passage from Maine's Ancient Law criticizing the disregard for the facts of primitive society, denouncing the long-prevalent evolutionary ideas that simplified facts. Lowie called on us to learn from Maine's historical method, to combine cultural interpretation with history, rather than blindly following simple evolutionism (Lowie, 2006: 257-263). Maine's evolutionary theory was built upon historical research, but it did not escape historical experience; he advocated seeking the process of legal development through a comparison of the civilizational and legal histories of Rome, England, India, and other regions, thereby integrating law, history, and even evolutionary concepts. This made his evolutionary thought increasingly rich in tension on the basis of historical experience.

Through Maine's evolutionary theory, we can also realize this complexity. Maine's evolutionary landscape implies consideration of complex historical experience, which is reflected both in his early evolutionary theory and in his later historical reflections. In his early representative work Ancient Law, Maine defined progressive and stationary societies, but at the level of historical experience, they connected different societies. Stationary society carried the conservative and unchanging characteristics of early society, while progressive society was the theoretical nexus between ancient and modern society. Although Maine realized that stationary society was the main type in history, he was not defeated by conservative human nature and society, nor did he become a conservative who championed tradition. He placed his hopes in and devoted himself to the study of progressive society, outlining the historical process and evolutionary trends of social and legal evolution, and emphasized that "from status to contract" was a historical summary of 19th-century progressive society.

In Maine's middle and later works, the complexity of institutions and history became prominent. He used the metaphor of a living organism to explain the cyclical fluctuations and gradual processes of institutional development. In this sense, Maine did not believe in unilinear evolutionism, thereby refuting Barnard's classification of him as a unilinear evolutionist (Barnard, 2006: 32). At the same time, he subscribed to a gradualist evolutionary thought. In Early Law and Custom, he pointed out that "institutions, like organic bodies, are subject to the great law of evolution." Whether it be the ancient Laws of Manu or modern legal systems, all stable laws have evolved gradually and also face decay and atrophy, "unable to escape the great law of evolution" (Maine, 2021: 144, 171, 178). Simultaneously, in Popular Government, he cited Darwin's maxim that "slight variations profit an organism," to illustrate that human society also needs change to promote development (Maine, 2012b: 92).

4 Concluding Remarks: Evolution, Civilization, and Chinese Social Theory

Maine's social thought is indeed complex and multifaceted, but by pruning away the branches, we can still find its theoretical trunk: a relatively confident belief in progress formed the intellectual background of Maine's thought, thereby generating the core content of his social theory—progressive society. Such societies follow the evolutionary trend "from status to contract," ultimately forming a modern contractual society composed of individuals. Within this framework, Maine depicted a landscape of legal and social evolution, which made him both imbued with the social evolutionary temperament of his time and uniquely prominent in the history of classical social evolutionary thought, influencing subsequent conceptions of legal and even social evolution.

In the 19th century, Maine's reflections on ancient and modern civilizations and on Eastern and Western social evolution allowed him to delve deep into history while maintaining a holistic perspective. Regarding ancient and modern civilizations, Maine did not sever the connection between them, believing that civilization was constantly undergoing historical evolution. At the same time, he opposed radical revolution, popular governments that discarded tradition, and extreme ideas that ignored the stable conservatism of human nature and society. The civilizational evolution understood by Maine was gradual and moderate, not one that broke through all restraints without regard for consequences. Modern civilization developed progressively, constantly shaping past traditions.

When the ancient-modern transformation was embedded in the discourse of Eastern and Western societies, Maine's reflections on civilization became increasingly nuanced and rich. He realized that although ideal types of progressive and stationary societies existed, all societies would, to a greater or lesser extent, generate progressive ideas. Stationary societies like India and China also had periods of stable progress; East and West merely differed in the speed at which ideas were generated (Maine, 2012a: 112). Deep in Maine's heart, Eastern civilization preserved the ancient traditions of modern civilization; there was no insurmountable chasm between the two. In his 1875 Rede Lecture at Cambridge University, Maine hoped that the English would venture into the vast interior of India:

The social state observed there may be called "barbarism," if we can divest the term of its offensive connotations. This barbarism belongs both to our human family and to those races that have preserved their principal and most distinctive institutions. This barbarism contains important components of our own civilization, elements of which have not yet been separated and displayed. (Maine, 1875: 14-16)

Through the comparison of civilized Britain and "barbarous" India, Maine sought to awaken the elite youth of Britain to the fact that it was the "barbarism" they disdained that had nurtured modern British civilization; the West's past was the East's present (Maine, 2021: 64). Some scholars have pointed out that the opposition between barbarism and civilization reflects the progressive picture from ancient to modern constructed by linear progressivists through tailoring and sequencing (Li Rongshan, 2016: 149). Based on the admonitions and reflections of civilizational history, Maine opposed absolute linear evolutionary concepts, opposed the view that severed traditional civilization from modern civilization, and even more strongly opposed the idea of a stark dichotomy between Eastern and Western civilizations.

Maine hoped that India would reshape its own civilization in the actual confluence of tradition and modernity. In the process of British cultural dissemination and legal transplantation, Maine did not become a fervent supporter of British civilization and law, nor did he regard the developmental path of Western European progressive societies as the only way. Facing 19th-century Indian society, which was predominantly based on village communities, Maine opposed the radical legal and social legislation of Bentham, Mill, and others aimed at completely reshaping Indian order (Ward, 1887: 502-503). Instead, he hoped to gradually guide India's modernization through education, law, and social construction (Maine, 1875: 36-39). Burrow thus realized that Maine affirmed the dual forces of external ideational influence and India's indigenous independent evolution, making him neither an extreme independent evolutionist nor a diffusionist (Burrow, 1966: 163). Maine always believed that between traditional and modern society, custom and contract, social and legal development have their own evolutionary processes, and Western European society should not try to force unnatural growth. He both hoped India would be influenced by the British spirit of progress and strove to preserve the village community culture, customs, and institutions within the Indian subcontinent. These two aspects were integrated into his complex thinking on civilization. Progressive ideas could promote India's development, enabling it to develop unique civilizational achievements according to its own conditions. In other words, Maine affirmed both the supportive role of external ideas and the need for civilization to develop along its own path. Therefore, the flourishing of civilization required neither wholesale imitation of the West nor rigid adherence to Indian tradition.

Through a systematic examination of Maine's social theory, this article reveals two important characteristics of his social thought: law and evolution. Legal change reveals social evolution; law becomes the foundation of Maine's social thought, while evolution constitutes the characteristic of his social theory. This holds important enlightening significance for the current development of social theory in China. On the one hand, understanding the true essence of social order through law is a feasible path for advancing social theory. As a 19th-century thinker on law and social evolution, Maine, through his research on the religious origins of law, customary law, and the transformation of codes, pointed out the nature of modern contractual society and its ancient evolutionary course. Whether classical social theorists like Durkheim and Weber, or contemporary social theorists like Foucault, Habermas, and Luhmann, they all attach great importance to the value of law for understanding society. On the other hand, Maine's social theory, with evolution at its core, pointed out a path to explore the substance of modern society by returning to ancient society, thereby achieving a profound reflection on civilization. Maine's core materials expanded from initially Roman and English law to Indian law, ancient Irish law, and Germanic law, thus extending into the social histories of these regions (Feaver, 1969). This theory is not an evolutionary thought focused on the history of a single country, but an evolutionary theory of law and society across multiple regions. From this perspective, the construction of Chinese social theory needs to trace back to ancient Chinese society, compare the institutional spirits of different legal systems, personally understand the developmental trajectories of different societies, and reflect on the inherent path of civilization.

For us, Maine's discussion of legal and social evolution leaves regrets; it is not yet sufficient to cover the historical experiences of China and other societies. As Durkheim said, Maine and others "cannot construct theories by comparing two or three facts belonging to the same type" (Durkheim, 2006: 295). The lack of Chinese experience in Maine's social evolutionary theory is precisely a direction for expansion. Qu Tongzu recognized this early on and, following Maine's path, pioneered unique research into ancient Chinese law and Chinese society (Qu Tongzu, 2010). Therefore, to unearth the social theoretical potential of Maine's thought, one must take seriously the social theoretical value of law, activate the lineage of legal and social theory from Maine and Qu Tongzu, and thereby develop a Chinese social theory based on law.

This article was originally published in the 6th issue of The Sociological Review in 2023.