In Calcutta in the 1860s, there was litigation in the newly established High Court over the rights of Indians who worked the land. Using English legal concepts, the chief justice saw the agriculturists as being little more than tenants-at-will. He arranged to sit with judges who supported his views until he went on a temporary visit to England. In his absence, two judges decided a case in which attention was given to the customs of Bengal and more extensive rights were accorded to numerous rural workers. After the return of the chief justice, the conflicting case law precipitated what contemporaries came to call The Great Rent Case. A Full Bench of the High Court now found, by a large majority, for those who worked the land. It was as if the new High Court had discovered sufficient self-confidence to assert itself within the colonial life of Bengal. The present study explains the process of judicial decision-making by reference to the influence of three colonial networks in Calcutta.

Maine is remembered as a man with firm opinions. He certainly knew his mind in respect of the patterns of legal history. As is well known, in considering the instruments used to bring law into harmony with society he identified legal fictions, equity and legislation and immediately proceeded to the remarkable claim that ‘Their historical order is that in which I have placed them’ (AL: 25). This tone of dismissive confidence is typical of his works. For example, at almost the same time the reader is informed that ‘it is indisputable that much the greatest part of mankind has never shown a particle of desire that its civil institutions should be improved’ (AL: 22); and in considering the entirety of modern Chinese society he insisted that progress had apparently been arrested ‘because the civil laws are coextensive with all the ideas of which the race is capable’ (AL: 23). The same approach may be found in his later works, where he often made observations such as that ‘nothing is more certain than that the mental picture which enchains the enthusiast for benevolent democratic government is altogether false’ (PG: 45).

Since Maine's death most critics had concentrated upon lively generalizations such as these. In particular there have been sustained and hostile debates about his statements concerning patriarchal society and primitive law. There have also, of course, been arguments about his claim that the movement of progressive societies had been ‘a movement from Status to Contract’ (AL: 170).

MAINE'S IDEAS

In 1861 Maine published a book which he hoped would do much to improve the condition of English jurisprudence. In Ancient Law, its Connection with the Early History of Society and its Relation to Modern Ideas he wished to describe very old types of law, to explain these types by reference to their social and intellectual context, and to consider the relationship between them and modern forms of legal analysis. In the words of the brief preface to the first edition: ‘the direct object of the following pages is to indicate some of the earliest ideas of mankind as they are reflected in ancient law, and to point out the relation of these ideas to modern thought’.

Within a few years of its publication it was clear that he had written a popular book. In the view of a modern commentator discussing the development of law in the nineteenth century, Sir Henry Maine ‘wrote the only legal best seller of that, or perhaps any other century’. The popularity is easy to explain. The book is so well written that it has an appeal to readers of any generation; and to Victorians it had the added attraction of containing references to numerous topics which were fashionable at the time.

It is a commonplace in the history of jurisprudence that later generations fasten on a few aspects of a jurist's achievement and thereby distort the nature of his work. Recent scholarship has argued very forcibly that this has happened in the case of thinkers as contrasted as St Thomas Aquinas, Hugo Grotius, Gianbattista Vico, Sir William Blackstone, Adam Smith, Jeremy Bentham and John Austin. The later use of their ideas often appears to bear little relationship either to the specific intentions of the jurists concerned, or to the very broad themes in their works which come to the fore when the reader has in mind the historical context in which their books were produced.

If Maine's thought suffered a similar fate it should come as no surprise. We have seen that his own selection of Austin's ideas was unbalanced in the extreme; it is such a strange selection that it is difficult to believe that Maine was even attempting an objective assessment and he may have expected that he himself would fare no better at the hands of others. Also, because of their references to numerous topics, there was a quality to Maine's works which made them susceptible to inappropriate quotation; the critic can choose from such a variety of themes and topics. When he died in 1888 it was likely that the reception of Maine's ideas would be full of contrasts.

INDIAN VILLAGES AND ENGLISH UTILITARIANS

An enthusiasm for Indian topics formed a consistent theme to Maine's writing: between the time of his early contributions to the Saturday Review in the mid-1850s and the publication of his last book in 1884, he wrote about the subcontinent in vivid terms. This fascination was in part the product of the subject's intrinsic interest; but in part, too, it was the product of Maine's pleasure in attacking the parochialism of his fellow Victorians: and this was so whether their prejudices arose out of some form of national intolerance, or a narrow vision of the common law, or religious dogmatism, or simple ignorance on any matter of any sort. For example, of Buckle's History of Civilisation he observed that the author

In contrast, Maine was much more cautious in his use of generalisations relating to India. His colourful pronouncements were linked to qualifications and references to what was not yet known.

‘VILLAGE COMMUNITIES’

Most commentators on Maine see his works of the 1870s as an elaboration of the ideas to be found in Ancient Law. They stress the element of continuity in Maine's thought, and point out that he was now attempting to relate some of his old ideas to the work of other scholars at Oxford who were engaged in comparative social studies. For example, we know that at this time Maine was interested in Max Muller's more recent work with comparative philology, E. B. Tylor's studies in anthropology, William Stubbs’ historical writings and Andrew Lang's treatment of mythology.

It is easy to see why a work like Village Communities, published in 1871, can be seen in this light. Much of it is taken up with a comparison between the origins of European property law and Maine's previous ideas about Indian systems of land holding. He had given his first series of Oxford lectures in 1870 and by working on the book during the summer of that year he had made his lectures, and two additional articles, suitable for publication in the following spring. As before, the explanatory theme designed to hold together his various ideas was the transition from forms of joint ownership arising out of status relationships to individual ownership reflected, to an ever increasing extent, in the development of contractual rights.

Maine was thirty-nine years old when Ancient Law was first published in 1861, and the reader of its pages soon gains an impression that the book is the product of sustained reflection and the gradual development of generalisations over a period of time. The style of writing, just as much as the content of the book itself, suggests from the start that it is not so much a work of logic as an attempt at synthesis in which the author finds a place for many of the concerns which have been considered in the preceding chapters. Yet the breadth of these concerns has never been adequately reflected in the ‘orthodox’ response to Ancient Law. We have seen that the conventional interpretation begins with the observation that Maine reacted against the analytical statements of the utilitarian jurists; for the most part he did this by revealing that their notion of law was not of universal application but related almost exclusively to industrial societies where, for example, sovereign power could be clearly identified. Maine revealed the full extent to which Bentham and Austin had been misguided when he explained law in the sort of evolutionary terms which were so attractive to mid-Victorians. The phases which he revealed have been described in different ways by different commentators but, in most cases, six stages have been recognised in his treatment of the Indo-European societies which were of primary concern to him.

SOURCES AND THEMES

Maine's jurisprudence was characterised by reasoning which began with the analysis of non-legal phenomena and arrived, ultimately, at conclusions about law. For example, observations on the political role of ‘public opinion’ in social change were used to explore the best methods of legal reform. Thoughts about the history of language were the means to dispute theories which claimed that law could be understood independently of social phenomena. Anthropological observations on societies, both past and present, were used in the course of arguments designed to reveal the inadequacies of theories of natural law. To take a more specific example, the argument that progressive legal change required a movement from status to contract was never presented by Maine as if it was a necessary truth about law. Instead the nature of the change was revealed by numerous historical investigations; in Ancient Law Maine only presents the argument about status and contract at the end of his fifth chapter.

There is an almost bewildering variety of topics in his work. It seems that he was prepared to discuss any subject.

BEING A LAWYER

Modern jurisprudence is largely unconcerned with the problems which are of greatest importance to practitioners. For instance, in many countries the practising lawyers of the mid-twentieth century have been concerned with the question: if the law is to be effectively and fairly administered is it necessary to have a politically powerful and independent organisation of professional lawyers? Admittedly, academics have asked this question in some contexts; it is seen as being of obvious significance for a critical analysis of legal professions and the provision of legal services. But academics have not seen it as being primarily a jurisprudential issue which may be decided by, say, discovering some necessary quality of law or integrating historical facts about legal practice into legal philosophy.

For someone such as Maine, this modern approach would seem strange and inappropriate. In so far as jurisprudence was concerned with the study of ideas about law it was an odd view of the subject which excluded from consideration the ideas which were regarded as important by those who actually practised law. Maine himself wished very much to know the answer to questions such as: how did being a lawyer change the way in which a man thought about the law? What was it in progressive societies which could set off a reaction in legal thought which produced a preponderant role firstly for fictions, secondly for equity and thirdly for statutes?

MAINE'S JURISPRUDENCE

Maine's books will always be read because they were so well written; they contain the finest prose in English jurisprudence, and the quality of their style gives them a capacity to create interest even when their content has been shown to be defective. They are proof that jurisprudence can be a form of literature.

However, any lawyer who reads Maine's works is confronted with the immediate problem of ascertaining precisely what he said about jurisprudence. In considering Ancient Law and its reception we saw that there is no such thing as a ‘Mainian school’ of legal thought with a commitment to specific and coordinated views on major issues; he produced no equivalent to the Benthamite or Austinian analysis of law. In fact, his ideas cannot be accommodated within the boundaries of any jurisprudential school. His thought is not fully explicable in terms of, say, German historical jurisprudence or legal anthropology. We have seen that his ideas have remained obstinately independent of the terms invented by others.

In the light of this, the common textbook description of Maine's jurisprudence may be defended as an appropriate starting-point for understanding his legal thought. The usual emphasis upon his rejection of unhistorical and utilitarian theories, and the positive attempt to explore ‘the natural history of law’ does much to reflect his enduring concerns.