Ancient Law | Page 4

the main theory of Ancient Law in the light of the criticism to which it had been exposed, and every reader of Ancient Law who desires to understand Maine's exact position in regard to the scope of his generalisations should read for himself the chapter in the later work entitled "Theories of Primitive Society." His theory of the patriarchal power had been criticised by two able and industrious anthropologists, M'Lennan and Morgan, who, by their investigation of "survivals" among barbarous tribes in our own day, had arrived at the conclusion that, broadly speaking, the normal process through which society had passed was not patriarchal but "matriarchal," i.e. understanding by that term a system in which descent is traced through females. It would take up far too much space to enter into this controversy in detail. It is sufficient to say that the counter-theory rested on the assumption that society originated not in families, based on the authority of the father and relationship through him, but in promiscuous hordes among whom the only certain fact, and, consequently, the only recognised basis of relationship, was maternity. Maine's answer to this was that his generalisations as to the prevalence of the patriarchal power were confined to Indo-European races, and that he did not pretend to dogmatise about other races, also that he was dealing not with all societies but all that had any permanence. He argues that the promiscuous horde, where and when it is found, is to be explained as an abnormal case of retrogression due to a fortuitous scarcity of females resulting in polyandry, and he opposes to the theory of its predominance the potency of sexual jealousy which might serve as only another name for the patriarchal power. On the whole the better opinion is certainly with Maine. His theory, at any rate, alone accords with a view of society so soon as it is seen to possess any degree of civilisation and social cohesion.
It will be seen that Maine's work, like that of most great thinkers, presents a singular coherence and intellectual elegance. It is distinguished also by an extraordinary wide range of vision. He lays under contribution with equal felicity and suggestiveness the Old Testament, the Homeric poems, the Latin dramatists, the laws of the Barbarians, the sacerdotal laws of the Hindus, the oracles of the Brehon caste, and the writings of the Roman jurists. In other words, he was a master of the Comparative Method. Few writers have thrown so much light on the development of the human mind in its social relations. We know now--a hundred disciples have followed in Maine's footsteps and applied his teaching--how slow is the growth of the human intellect in these matters, with what painful steps man learns to generalise, how convulsively he clings in the infancy of civilisation to the formal, the material, the realistic aspects of things, how late he develops such abstractions as "the State." In all this Maine first showed the way. As Sir Frederick Pollock has admirably put it--
Nowadays it may be said that "all have got the seed," but this is no justification for forgetting who first cleared and sowed the ground. We may till fields that the master left untouched, and one man will bring a better ox to yoke to the plough, and another a worse; but it is the master's plough still.
We may conclude with some remarks on Maine's views of the contemporary problems of political society. Maine was what, for want of a better term, may be called a Conservative, and, indeed, it may be doubted whether, with the single exception of Burke, any English writer has done more to provide English Conservatives with reasons for the faith that is in them. He has set forth his views in a collection of polemical essays under the title of Popular Government, which were given to the world in book form in 1885. He viewed the advent of Democracy with more distrust than alarm--he appears to have thought it a form of government which could not last--and he has an unerring eye for its weaknesses.[3] Indeed, his remarks on the facility with which Democracy yields itself to manipulation by wire-pullers, newspapers, and demagogues, have found not a little confirmation in such studies of the actual working of democratic government as M. Ostrogorski's Democracy and the Organisation of Political Parties. Maine emphasised the tyranny of majorities, the enslavement of untutored minds by political catchwords, their susceptibility to "suggestion," their readiness to adopt vicarious opinion in preference to an intellectual exercise of their own volition. It is not surprising that the writer who had subjected the theories of the Social Contract to such merciless criticism sighed for a scientific analysis of political terms as the first step to clear thinking about politics. Here he was