Best known as a history of progress, "Ancient Law" is the
enduring work of the 19th-century legal historian Henry Sumner
Maine. Even those who have never read Ancient Law may find Maine's
famous phrase "from status to contract" familiar. His narrative
spans the ancient world, in which individuals were tightly bound by
status to traditional groups, and the modern one, in which
individuals are viewed as autonomous beings, free to make contracts
and form associations with whomever they choose.
Maine's dichotomy between status-based societies and
contract-based societies is a variation on a theme that has
absorbed the social sciences for a century: the distinction between
"Gemeinschaft" (community) and "Gesellschaft" (society). This theme
has been elaborated upon by such eminent scholars as Tonnies,
Durkheim, Weber, Simmel, and Parsons. Along with many lesser
scholars, they have considered what we gained and what we lost when
we left behind a social world held together by communal, primordial
bonds, and adopted one based upon impersonal temporary agreements
among individuals.
Maine wrote "Ancient Law" to increase knowledge about the
internal mechanics of developing societies. He felt a key objective
was better understanding of how law develops over time. Failure to
understand temporal processes in relation to legal development, he
argues, leads to the creation of false dichotomies. The most
important of these is the alleged division between the ancient and
the modern, which Maine described as an "imaginary barrier" at
which modern scholars feel they must stop and go no further.
Maine's desire to breach this barrier led him to present this
complex and richly nuanced analysis of legal evolution. This book
will be of interest to historians, political philosophers, and
those interested in the development of law.
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