[author] Karuna Mantena
[content]
MAINE AND THE COMPARATIVE IMAGINATION
Author: Karuna Mantena，Professor of Political Science at Columbia University
The vivid account of the singular nature of ancient society initiated a generalized structure of contrast that would become foundational to the comparative imagination of modern social theory. In highlighting its difference from the dynamics of modern society, the newly “ethnologized” ancient world would be bracketed together with primitive, feudal-medieval, and Eastern social forms as traditional societies defined through a common opposition to the unique trajectory of industrializing societies of the West.
The impulse toward universal schemes of classification was bolstered by the ubiquitous enthusiasm for comparative methodologies in the nineteenth century. One of the key sources for this enthusiasm lay in the success of comparative philology and the dramatic impact of its proposition of an Indo-European language family linking Sanskrit to Greek and Latin. The remapping of the historical relationship between languages and nations heralded by this discovery radically altered the context for the study of Greco-Roman antiquity, now firmly oriented eastward with India as the privileged site of comparison. The conceptual boldness of Fustel’s and Maine’s reformulations of ancient society stemmed in part from their systematic (and unprecedented) use of Indian evidence to make sense of ambiguous or unintelligible practices and beliefs of early antiquity. On the one hand, the Indo-European or Aryan idea functioned as an incorporative framework, used to extend the grounds of comparison globally; linguistic affinity could demonstrate institutional filiations between East and West and thereby elucidate what are taken to be general tendencies in human history. On the other hand, a radical difference was also imputed to ancient customs, ideas, and institutions (especially Indian institutions); a difference both subsumed and (chronologically) particularized in terms of a relegation to the “early history of society.” In Maine’s work, it was at first the ancient patriarchal family and then the agricultural village-community that were singled out as universal institutions that both bridge and entrench the divide between East and West, ancient and modern.
Comparative philology was the acknowledged model for Maine’s project of “comparative jurisprudence.” The great achievement of comparative philology was the discovery of the Indo-European language family that “suggested a grouping of peoples quite unlike anything that had been thought of before.” This revolution in the understanding of the ethnological relationship among peoples underpinned India’s epistemological centrality as “the great repository of verifiable phenomena of ancient usage and ancient juridical thought.” Primitive legal 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.” As such they are the “germs out of which has assuredly been unfolded every form of moral restraint which controls our actions and shapes our conduct at the present moment.” Thus, while the social state of India is “barbarism,” it is a “barbarism which contains a great part of our own civilization, with its elements as yet inseparate and not yet unfolded.”
Maine’s notion of comparison was predicated upon a specifically anthropological timescale, one in which differences in place and customs are represented as differences in time. To compare was to “take a number of contemporary facts, ideas, and customs, and . . . infer the past form of those facts, ideas, and customs not only from historical records of that past form, but from examples of it which have not yet died out of the world.” This would entail examining “parallel phenomena,” data that are contemporaneous in time, “with a view of establishing, if possible, that some of them are related to one another in the order of historical succession.” In practical terms, this meant that ethnological data of extant “primitive” societies such as India provided a crucial link in the attempted reconstruction of a universal history of civilization, with Western society as its apex. The Aryan or Indo-European idea implicated India, ancient Rome, and feudal and modern Europe in a singular (evolutionary) history of institutional development and, thus, became a vehicle through which universal history could be imagined.
Comparative philology, however, proved to be more of an inspirational analogy for Maine’s investigations and less a strict methodological model. While Maine was attentive to linguistic affinities among legal terms in various systems of archaic law, this was not his primary mode of investigation (which was historical and ethnographic). Moreover, comparative jurisprudence was considered to be a more ambitious project by nature and thus also likely to produce more tentative generalizations than comparative philology. Jurisprudence took as it object the entire “phenomena of human society” and “laws and legal ideas, opinions and usages, are vastly more affected by external circumstances than language. They are much more at the mercy of individual volition, and consequently much more subject to change effected deliberately from without.” The fact of deliberate social change, which for Maine was even more exaggerated in the history of “progressive” societies, was considered to be one of the central factors that had “done most to obscure the oldest institutions of the portion of the human race to which we belong.” The two most important historical manifestations of this were, firstly, the specific influence of the Roman Empire (and through it, Roman law) and, secondly, the general impact of centralizing state power and legislation (of which Rome was also the key example). It was in those very areas of the world—such as India and Ireland—where the impact of these two great historical forces was thought to have been most dimly felt, that one could ascertain the autochthonous nature and logic of primitive institutions.
This was another reason why India remained a privileged point of entry for the discussion of primitive law and society—it represented the “living past” of Europe. For Maine, “there is no country, probably, in which Custom is so stable as it is in India.” The study of contemporary Indian social and political institutions thus cast light upon the past history of Aryan societies and peoples precisely because Indian society was assumed to have stagnated, arresting development of institutions at an early stage, and, thus, preserving their ancient character. India “includes a whole world of Aryan institutions, Aryan customs, Aryan laws, Aryan ideas, Aryan beliefs, in a far earlier stage of growth and development than any which survive beyond its borders.” Scientific observation of Indian institutions and practices could serve to fill in numerous gaps, as it were, in the existing historical record. As history itself was understood to have a definite direction, a proper characterization of the point of origin—what the term ancient served to designate—was fundamental.
From his earliest work, Maine’s interest in history was always theoretically oriented. Throughout his corpus, he attempted to reconstruct the historical origins, logic, and development of institutions, especially the ideas that formed and sustained them, in the service of substantiating generalizations about the evolutionary logic of history. The basic theoretical formulation of that historical logic—summed up in Maine’s most famous maxim, “from Status to Contract”—was first proposed in Ancient Law (his earliest work) and dominated the theoretical horizon of all later works with remarkably little hesitation or alteration. Maine’s theoretical confidence and consistency was not that of a philosophical historian; he presented his theoretical conclusions as inductively formed from a close reading of historical and ethnographic evidence and never as hypotheses derived from abstract reflections on man’s nature or first principles. At the same time, the status/contract contrast arguably proposed an equally abstract and stylized historical narrative in which modern society gradually developed out of an ancient/primitive society that is conceived as its radical inverse.
In Ancient Law, Maine introduces the dictum “from Status to Contract” as a “law of progress” in which the “individual is steadily substituted for the Family, as the unit of which civil laws take account.” And “the tie between man and man which replaces by degrees those forms of reciprocity in rights and duties which have their origin in the Family is Contract.” The “Family” from which Maine believed our modern conceptions of rights and duties were distilled, or more precisely disentangled, was not the “natural” nuclear family, but rather the particular constellation of kinship and power embodied in the ancient patriarchal family. Comparative jurisprudence, again undergirded by the highly generative idea of an Indo-European language family, had demonstrated the widespread (perhaps even universal) existence of the ancient patriarchal family as the “the primeval condition of the human race.” While the clearest delineation of the ancient family as a legal institution would be traced in Roman law, in later works, Maine attempted to establish its generality and its varied articulation in institutions from the Hindu Joint Family, the East European (Slavic) House-Community, to its final transitional form in the Germanic (medieval) and Indian village-community. In proposing the patriarchal family as the original sociopolitical form of the (Indo-European) civilized world, Maine argued for the theoretical primacy of kinship as the ideological and institutional basis of early society. Modern society, then, begins to take shape in the interstices of the dissolution of the ancient family, leading to the emergence of the individual (as opposed to the corporate family) as the primary legal unit of society, and of territory (as opposed to kinship) as the primary grounds of political obligation.
The ancient patriarchal family in all its forms was most importantly a corporate group, organized under something akin to the archaic jurisdiction of patria potestas—the absolute power of the patriarch over dependent persons and property. It was a patriarchal or patrilineal aggregate in that it is defined by agnatic consanguinity, its unity given by common obedience to the eldest male ascendant. The authority of the patriarch was supreme over “the life and death” of a whole host of dependents—mothers, siblings, wives, children, clients, slaves—and extended to (their) possessions he held in what Maine termed a “representative rather than in a proprietary character.” In Roman civil law, the patriarchal family had a specific legal character and identity; it was a corporation perpetuating itself intergenerationally as a single unit identifiable through patronymic and gentile nomenclature. In terms of property and succession, the “family” was inherited as whole, and in terms of liability, it was collectively responsible for reparations. For Maine, it is this corporate character of the ancient family that stamped itself on all areas of law in early jurisprudence. In technical terms, it meant that in archaic law the law of persons would confound all other spheres of law. The transition from ancient to modern law would therefore entail the continual restriction of the law of persons, that is, “the gradual dissolution of family dependency and the growth of individual obligation in its place.” In this particular narrative of legal development, modern society reaches its telos in “a phase of social order in which all these relations arise from the free agreement of individuals.”
The severity of the domestic despotism in the ancient family was a specific feature of private law and thus coexisted with public principles of liberty and equality (especially between father and son) in the realm of ancient citizenship. Ancient law, especially as embodied in the primitive codes such as the Twelve Tables and Laws of Manu, Maine argued, displayed a paradoxical blend of scantiness and fine detail. While the rigid formalism of private law, especially laws relating to the family, would abound in minute formulations of proper procedure and ceremony, whole spheres of public law would be absent. Even after state or public law comes into being, it was still the case that its ordinances have limited application, rarely penetrating into the jurisdiction of the ancient family. It was in respect to the unity and independence of the ancient family that Maine insisted that ancient society, in a fundamental sense, was imperium in imperio, a society of commonwealths, an aggregation of families in contrast to the collection of individuals that comprises modern society. The closest modern analogy to archaic public law therefore was international law, where a minimal set of rights and duties extended only to the head of family, who was sovereign in his own domestic domain. Although Maine deliberately invoked Robert Filmer in arguing for the primary fact of the patriarchal family in the history of society, his own account of the relation between original patriarchy and the development of sovereignty ran in the opposite direction. In Filmer’s patriarchal theory, the relations within the patriarchal family mirrored the sovereign’s relation to his citizens. By contrast, rather than as a model of sovereignty expanding outward from the pattern of rule within the family, in Maine’s account, households were instead construed as kingdoms/sovereignties in miniature. The trajectory from ancient to modern society, then, was one in which patriarchal power gradually lost its hold over dependents, becoming more and more circumscribed by a civil/public law that tended to enlarge itself, and finally independence conferred the entire set of rights of duties of the family onto individual persons. Whereas ancient law consisted of a system of rights and duties among sovereigns understood as families, in modern law, individuals relate to one another as little sovereigns.
The ancient family was the essential starting point for understanding the dynamic of legal progress, for “a great part of the legal ideas of civilised races may be traced to this conception,” and, “the history of their development is the history of its slow unwinding.” In the specific account of the hierarchical, despotic basis of the ancient family and the highly circumscribed modes of action instituted in that social system, Maine offered a novel portrait of primitive life. If stadial theories of human society tended to view the savage as highly individualistic—in Mill’s account the savage was pure ego motivated by uncontainable desire—Maine’s work depicted primitive society as a way of life that was deeply marked by ritualized forms of thinking and action. The development of civilization lies not in a growing sense of social coordination and orientation toward the public but rather in the freeing of the individual from the constraints of communal obligation via the steady amelioration of the rigidity of ancient law. At the same time, in focusing on patriarchal power as the nexus around which the ancient family took shape, Maine also sought to demonstrate the centrality of kinship as the primary basis of ancient society. Kinship, however, was far from a “natural” relationship; it was a highly artificial, fictive set of relationships, thoroughly imbued with and constituted by structures of power.
The simplest illustration of the ideological constructedness of the agnatic family was the way it privileged one side of the family tree and excluded another equally proximate set of familial ties (cognates). Also, through the widespread practice of adoption, a feature Maine argued was a universal and essential feature of archaic social systems, “strangers” could be legally recognized as kin. Kinship as an institution was not the reflection of “natural” social ties, but rather, Maine argued, was best understood as a political institution marking subjection to a common authority. Kinship was a primitive ideological marker or name for essentially political relationships and configurations of power. By contrast, Morgan and McLennan regarded lineage systems as emergent from and proof of distinct evolutionary stages in the institution of marriage (specifically the creation of marriage classes via rules of exogamy and endogamy). Fustel de Coulanges derived agnatic consanguinity and the patriarchal family from a prior religious orientation, namely the structure of ancestor worship and the constitution of classes of persons who were authorized to perform the appropriate sacred rites. Durkheim famously conceived of social structure itself as the primary or a priori source of primitive systems of classification (the origin of the logical categories of understanding).
In Maine’s model, however, power and kinship are always blended in such a way that power is considered to be the original source and “formative cause” of the coming together of people (and the continuing force that binds groups). Thus kinship as a social institution was not merely derivable from biological (or cultural) theories of sex and marriage, religious sentiment, or social structure, although it would almost certainly insinuate itself into and even structure these other spheres. Rather, kinship is the central conceptual device of primitive political theory; it functions primarily as a way of naming (and thus comprehending and masking) political relations. According to Maine, “societies still under the influence of primitive thought Labour under a certain incapacity for regarding men, grouped together by virtue of any institutions whatsoever, as connected otherwise than through blood-relationship.” In Maine’s view, society begins from the family at its nucleus and extends outward, in concentric circles, to include the gens (an aggregation of families), the tribe (an aggregation of gentes), and finally the commonwealth. And each extension of kinship bears within it a particular set of mutual rights and responsibilities. Kinship, when it moves beyond the confines of the natural family (as it does in the ancient patriarchal family) to include gentile and tribal groupings is in reality an artificial, imagined, or fictive relation, one whose ideological function is to veil the transformations involved in the slow transition to large-scale, territorially based political communities.
“The history of political ideas begins,” argued Maine, “with the assumption that kinship in blood is the sole possible ground of community in political functions.” While empirically a legal fiction, since no families (or tribes, or nations, for that matter) were ever descended unmixed from some known ancestor, it was a fiction that made possible the growth of political communities. Ancient polities, like all existing political communities, were born of war, conquest, and absorption, yet despite this, they were continually (re)constituted and ordered on the model of an association of kindred and “all thought, language, and law adjusted themselves to this assumption.” The efficiency and elasticity of this legal fiction explains the breadth and endurance of the ideology of kinship as the name for connective bonds among people in traditional society. And its displacement by a rival principle of political association, namely locality or territoriality, was nothing if not a world-historical revolution. Nothing in the history of political ideology was “so startling and so complete as the change which is accomplished when . . . local contiguity . . . establishes itself for the first time as the basis of common political action.”
Although this remarkable transition was indeed a revolution, it was, for Maine, a historical development that transpired extremely slowly, gradually taking shape in parallel forms in scales both large and small. The large-scale shift from kinship to locality marked the transformation from tribal sovereignty to the territorial sovereignty of the modern nation-state. Maine offered the changing nomenclature of European monarchs as evidence of this shift, that is, the alteration in titles from King of the Franks to King of France. The former represented a relation of authority over a specific group of people, while the latter, a relation of dominion over a definite piece of land. The shift presumes the prior development of exclusive ownership or proprietorship over land. The doubling of sovereignty and dominion was, for Maine, a specific outgrowth of the process of feudalization in Europe. The importance of dominion to the principle of territorial sovereignty was confirmed and legitimated in the tenets of modern international law, particularly those aspects of it that were imported from Roman law. For Maine, the ways in which sovereign states were conceptualized in modern international law seemed to be modeled on Roman civil law; sovereigns thus related to one another like individual Roman proprietors (especially in laws relating to questions of use, occupancy, and dominion).
On a smaller scale, this transition from kinship to locality as the source of communal affiliation and obligation began when primitive lineage groups become (primarily) agricultural communities, that is, when tribal communities “settled down upon a definite piece of land.” In this process, “the Land begins to be the basis of society . . . at the expense of Kinship, ever more vaguely conceived.” The central example of this transition was the agricultural village-community, which Maine argued was the essential social form of both Eastern and Western societies. The study of the village-community dominated Maine’s later works, for as he conjectured at the end of Ancient Law, in its historical development one could chart the breakdown of the ideological hold of kinship, the dissolution of family dependency, and the concomitant growth of individualism, which in this context ended in the development of private property in land. In Maine’s words, “our studies in the Law of Persons seemed to show us the Family expanding into the Agnatic group of kinsmen, then the Agnatic group dissolving into separate households; lastly, the household supplanted by the individual; and it is now suggested that each step in the change corresponds to an analogous alteration in the nature of Ownership.” Private property, “in the shape in which we know it, was chiefly formed by the gradual disentanglement of the separate rights of individuals from the blended rights of a community.”
Maine’s precise account of the emergence of private property in land will be taken up more directly in chapter four. For now, I want to focus on what Maine’s characterization of village-communities was meant to reveal about the nature of traditional societies. Village-communities represented a midway point, as it were, between kinship and locality. In effect, they marked the pure doubling of kinship and locality; the “Village-Community of India is at once an organised patriarchal society and an assemblage of co-proprietors. Personal relationships are confounded with proprietary rights.” In later writings, Maine would emphasize the ways in which the inner trajectory of village-communities continually tended toward the displacement of their self-identification as a body of kinsmen by a more abstract notion of community held together by mutual rights and obligations in relation to land. Significantly, the move to locality as the primary source of identification was still structured by communal obligations, and as such the village-community was still far removed from the free rein of individualism embodied in a society based upon contract. The shift from kinship to locality, while fundamental to the dilution of the ideological basis of ancient society, remained a transitional phase in the coming of contractual society.
Maine’s contrast between status and contract, which, in Ancient Law, was a formulation about the historical trajectory of Roman law (and analogously the development of Western legal systems), initiated a general classificatory framework, as the ancient was equated with other social systems in common opposition to the modern. The ancient family and, even more crucially, the village-community became nodal points of comparison through which Maine would weave together the histories of the various branches of the Aryan tree (India, Ireland, Rome, and Germany) into a continuous institutional history of the progressive development of private property, freedom of contract, and individual right. Maine’s use of the comparative method, despite its expansive historical and geographical imagination, tended to reinforce the conceptual contrast between status and contract as structuring principles of radically opposed social formations. Although Maine utilized a wide array of historical sources (extending from the Germanic, Indian, and Roman to the Slavic, Russian, and Irish) this diversity was circumscribed and contained within this elementary contrast of status or contract. Status (or custom) and contract not only defined the two endpoints of historical development but also determined the nature of all the intermediate stages, which exhibited no distinct internal principle of organization not derived from the elementary construction of status or contract. For example, in Maine’s account of the various kinds of village-communities in Europe and India, especially of those forms which have developed most in the direction of feudalism, Maine examined many historical and contemporary examples of land law where customary and contractual principles were intermingled. But rather than searching for a unique definition of this vast set of “mixed” cases, Maine tended to see them as various midway points in the larger transition from status to contract. Contemporary evidence of customary or communal principles was characterized as “traces” or “survivals” of the ancient type. Thus, less than differentiating and classifying a number of distinct evolutionary stages in history, status and contract worked to describe opposed ideal-typical formulations of ancient and modern societies.
This contrast was further accentuated by the temporal horizon of the comparative method, which tended to conceptualize differences in social forms as differences in developmental states, that is, as differences in time. Maine’s study of village-communities, for example, was premised upon and reinforced this kind of temporal and spatial contrast, especially along the lines of an East/West and traditional/modern dichotomy. The patriarchal village-community, characterized by the communal ownership of property, was the prime nexus around which English, Teutonic (German), and Indian (extending to Russian, Slavic, and Irish) agrarian and legal histories were woven into a common theoretical framework. In establishing these historical affinities, the framework however produced a temporal equivalence between the institutions of the medieval West and contemporary Eastern phenomena, a process of comparison in which what laid beyond Europe was always already before Europe.
Moreover, the commonality established between the contemporary East and the premodern West was not only built upon a temporal distancing but, more crucially, was also construed in such a away as to reinforce a unified concept of status-oriented or traditional societies in opposition to the uniqueness of modernity in the West. The ancient, medieval, and primitive are collapsed and subsumed under the generalizable category of tradition, poised in common opposition to the uniqueness of the modern West. The particularity of Western modernity was, thus, constructed through both an anthropological time frame and the consolidation of a unified and generalized category of tradition as premodern.