Classic Writings in Law and Society

Contemporary Comments and Criticisms

A. Javier Trevino

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351528122
• Edition: 2
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

This volume consists of outstanding essays by contemporary scholars and specialists on classic writings in law and society. This second edition expands the previous volume by adding additional statements. Included are commentaries on Edward A. Ross's Social Control: A Survey of the Foundations of Order, Karl N. Llewellyn's Jurisprudence: Realism in Theory and Practice, Jerome Frank's Law and the Modern Mind, Leon Petrazycki's Law and Morality, and Karl Renner's The Institutions of Private Law and their Social Functions.The goal of Classic Writings in Law and Society is to acquaint a new generation of students with classic writings by diverse social and legal scholars ranging from Henry Sumner Maine, Oliver Wendell Holmes, Jr., and Hans Kelsen to Eugen Ehrlich, Nicholas S. Timasheff, and Richard Quinney. This work continues to demonstrate their contemporary theoretical relevance. Accordingly, each chapter speaks of the scholars' work in general, how the particular book under consideration fits into that corpus, and how the book is assessed in a present day context. These essays have a clear relation to the "classic" tradition in sociolegal thought.Reading the classics is useful in gaining a better understanding and appreciation of the essential foundation for a post-classic approach in law and social inquiry an approach that can be found in such orientations as critical legal studies, chaos theory in law, and legal semiotics. Classic Writings in Law and Society includes commentaries that consider early writings that set the standard for the social scientific approach in examining issues of law and punishment, social control, joint stock companies, business firms and nation-states in the study of law and society.

Part 1

Foundational Works in Law, Punishment, and Society

1 On Henry Sumner Maine, Ancient Law

Dante J. Scala

Ancient Law, the most famous work of the nineteenth-century legal historian Henry Sumner Maine, is known as a history of progress, and its reputation as such is perhaps an obstacle to its appreciation by today’s readers. The danger is that first-time readers of the book may think they already know how Maine’s argument is going to end before they begin reading it.

For those with a background in the social sciences, but who never have read Ancient Law, Maine’s famous phrase “from status to contract” may still sound a familiar note about the progress of society. Maine’s narrative of change spans the ancient world, in which individuals were tightly bound to traditional groups such as the Roman patriarchal family, and the modern one, in which individuals are viewed as autonomous beings, free to make contracts and form associations with whomever they see fit. It is part and parcel of a larger tradition in the social sciences. The dichotomy Maine drew between status-based societies and contract-based societies is a variation on a theme that has dominated the social sciences for a century: the distinction between Gemeinschaft (community) and Gesellschaft (society), elaborated upon by such scholars as Tönnies, Durkheim, Weber, Simmel, and Parsons.¹ All of these great minds, and many lesser ones, have considered the question of what we gained and what we lost when we left behind a social world held together by communal, primordial bonds, and adopted one allegedly held together by impersonal, temporary agreements among individuals. The analytical dichotomy between Gemeinschaft and Gesellschaft as a description of historical evolution, the sociologist Edward Shils observed, was an example of what he aptly termed “the tyranny of tradition.”² What was in Maine’s day a fresh and interesting idea—that law was now no more than a “mere surface-stratum,” thinly covering the “ever-changing assemblage of contractual rules” that actually governed social arrangements³ —has become in our day a rather hackneyed concept in the social sciences. Thus one of the problems confronting Maine’s readers, who today live with daily tales of the all-encompassing power of markets and globalization, is resisting the lull of a too-familiar analysis of Progress and Modern Society.

One of the dangers of knowing (or presuming) the ending of Maine’s history is bypassing the more interesting question of how we got from there to here. If human progress was the end, was the end inevitable? Or, was there an indispensable means toward this end? What was the vehicle of progress?⁴ For Maine, the means toward the end of Progress was Empire: an unsurprising conclusion, perhaps, for a Victorian Englishman.

The empire Maine had in mind, however, was one not composed of troops and commerce, garrisons and administrations, but rather one of words and ideas, those compiled under the formidable array of Roman law. The law of the Roman Empire was the winning contender in what Maine variously described as “the empire of ideas”⁵ and “the empire of primitive notions;”⁶ the achievement of Roman law should not only be measured in words on paper, or laws enforced, but in its effects on the Western imagination. Such effects could be measured as physical empires are sometimes measured, in terms of time and space; consider, for example, Maine’s assertion of the “known social law” that “the larger the space over which a particular set of institutions is diffused, the greater is its tenacity and vitality.”⁷ How did an empire of words and ideas gain “tenacity and vitality?” What were the mechanics of innovation and diffusion that led to the success of this empire of the Western mind? These are the questions which should guide today’s reader of Maine’s Ancient Law beyond the well-traveled roads of the distinction between status and contract, into the open, unsettled country of how societies innovate and how knowledge is diffused.

In Maine’s own day (a quite fruitful period of legal historiography in Europe, from Savigny to Maitland), he warned that the study of jurisprudence had failed to answer these questions about the nature of progress. He regarded Ancient Law as an attempt to supply the defects of previous studies and to increase knowledge of the internal mechanics of progressive societies. One of the major problems in this field of scholarship, Maine argued, was the lack of understanding of how law develops over time. This failure to understand temporal processes, in relation to legal development, had led to the creation of false dichotomies. The most pre-eminent of these is the alleged division between the ancient and the modern, which Maine described as an “imaginary barrier” at which modern scholars felt they must stop and go no further in their study of the ancient world.⁸ Maine’s desire to breach this barrier led him to present a much more complicated and nuanced analysis of legal evolution than is captured by the signature phrase, “from status to contract.”

This barrier between ancients and moderns was created in part, Maine argued, by his contemporaries’ overreliance on functionalism: This scholarly error was “the mistake of supposing that every wheel and bolt in the modern social machine had its counterpart in more rudimentary societies.”⁹ Progress, according to Maine, did not consist of some ongoing process of replacing old, worn-out parts of social machinery with newer, more efficient cogs, while the design of the machine itself remained basically the same. Such a vision of social progress made the faulty assumption that all societies performed more or less equivalent functions, and thus could be judged along a continuum according to how well they performed those functions. In actuality, Maine argued, some ancient institutions had performed functions that had no modern equivalents:

...the warning can never be too often repeated, that the grand source of mistake in questions of jurisprudence is the impression that those reasons which actuate us at the present moment, in the maintenance of an existing institution, have necessarily anything in common with the sentiment in which the institution originated.¹⁰

The achievement (and ascertainment) of progress in legal development is difficult to accomplish, Maine argued, in part because of the complicated relationship in which the ancient and the modern, the old and the new, both converge and diverge. A measuring stick for progress is difficult to devise because the utility of law is not a sufficient explanation for its formation and development: “Nothing in law springs entirely from a sense of convenience.”¹¹ A society’s sense of convenience, of what is more or less useful or beneficial, is shaped by the ideas that came before it. Options and alternatives are constructed out of the materials of the past, which were in turn created with far different intentions in mind. Only in this way, Maine argued, can it be said that ancient ideas are part of our modern “every-day mental stock.”¹²

For example, in opening a chapter on the early history of testamentary succession, Maine attested to the following difficulties in explaining the development of the will as a legal instrument. The scholar’s dilemmas are manifold. At the beginning of this particular line of legal development, one finds oneself “surrounded by conceptions which it requires some effort of mind to realise in their ancient form.” At the end of the line, one is stuck “in the midst of legal notions which are nothing more than those same conceptions disguised by the phraseology and by the habits of thought which belong to modern times.” ¹³ For the historian, understanding how this development unfolded means divorcing oneself from the notion of progress. In other words, the historian must resist the urge to view the ancient world as mere prelude to the modern one, in order to understand the past on its own terms, rather than in the idiom of the current day. Maine was determined that legal history should not take the shape of a “search for origins,” assimilating past events in order to explain the present in an arbitrary fashion.¹⁴ How Maine fashioned a superior kind of historiography will be clarified by an overview of his historical narrative of the development of ancient Roman law.

The Importance of Roman Law

If one associates the modern mind with progress and a society’s self-consciousness of that progress, then according to Maine, the Romans were the first moderns. In Ancient Law, the Roman legal code emerges as the linchpin to the development of progressive societies in the West—an accomplishment of great significance, given the paucity of such societies in a world where inertia has tended to govern. Part and parcel of social progress, Maine argued, is the improvement of the law of society. Such improvement is similarly rare. One finds cases of sudden, violent change in which one set of laws is upended in favor of another, as well as instances in which a code of apparently divine origin grows “into the most surprising forms, by the perversity of sacerdotal commentators.” Only a small part of the world, however, has been graced with gradualism, that is, with a legal system which underwent slow, steady improvement over time. “There has been material civilisation,” Maine declared, “but, instead of the civilisation expanding the law, the law has limited the civilisation.”¹⁵

The paradigm of a legal system beating such long odds, the exception to the rule of failure, is the Roman system of law, which displayed a long, continuous, recorded history of successful improvement:

The Roman jurisprudence has the longest known history of any set of human institutions. The character of all the changes which it underwent is tolerably well ascertained. From its commencement to its close, it was progressively modified for the better, or for what the authors of the modification conceived to be the better, and the course of improvement was continued through periods at which all the rest of human thought and action materially slackened its pace, and repeatedly threatened to settle down into stagnation.¹⁶

The success of Roman law, however, had implications far beyond the institution of a legal code. For not only did the expansion of the Roman Empire expand the sphere governed by the Roman code; in turn, the Roman law expanded the sphere of the Western mind itself. For Maine, Roman law was the lingua franca of the West: “To the cultivated citizen of Africa, of Spain, of Gaul, and of Northern Italy, it was jurisprudence, and jurisprudence only, which stood in the place of poetry and history, of philosophy and science.”¹⁷ The Roman law became the language of the Western intellect, providing a common grammar for various courses of thought: “I know nothing more wonderful,” Maine declared, “than the variety of sciences to which Roman law, Roman Contract-law more particularly, has contributed modes of thought, courses of reasoning, and a technical language.”¹⁸ Such tools were necessary before advanced thought could even begin on a particular subject, and so in this way Roman law provided the architectonics of the Western mind: “Politics, Moral Philosophy, and even Theology, found in Roman law not only a vehicle of expression, but a nidus in which some of their profoundest enquiries were nourished into maturity.”¹⁹

As an example of the far-reaching effects of Roman law on the thought of the West, Maine offered the development of Western theology as a stream of thought separate from its older source in the East. To be sure, this separation was prompted by causes beyond the reach of the law, such as the founding of Constantinople and the division of the Roman Empire into two parts. The separation of East and West left the latter not only politically autonomous, but intellectually independent for the first time from the venerated Greeks.

For at least three centuries, philosophy and science were without a home in the West; and though metaphysics and metaphysical theology were engrossing the mental energies of multitudes of Roman subjects, the phraseology employed in these ardent enquiries was exclusively Greek, and their theatre was the Eastern half of the Empire.²⁰

The separation of East from West, however, did not leave a complete vacuum in the latter, more backward part of the Empire. While the Latin of the common folk was deteriorating into various vernacular dialects, a Latin worthy of use for the endeavors of the greatest minds in the West had been retained in the Roman law codes. The jurisprudence of Roman law filled the gap left behind by the departure of Eastern influences, remaining the “one department of enquiry, difficult enough for the most laborious, deep enough for the most subtile, delicate enough for the most refined, [which] had never lost its attractions for the educated classes of the Western provinces.”²¹

As such, Roman law became both midwife and nurse to the new intellectuals of the West, and left an indelible mark on their birth and development, especially on the ultimate subject of theology.²² (In Max Weber’s terms, the Roman code provided a means toward the routinization of charisma: the institutionalization of the personal charism of a divine figure in the corporate body of a church.) As the Middle Ages began, Christian theologians in the East remained devoted to the study of the nature and substance of the divine: How many persons was God? How could God be simultaneously fully divine and fully human? Such studies were undertaken in the idiom of Greek metaphysics. In regard to these deliberations, the Western members of the Christian Church had remained respectful but quiet spectators. As the halves of the Roman Empire diverged, however, Western theologians began to emerge from the shadow of their more mystical Eastern brethren, making over problems of the divine in their own image: that is, the image of Roman law and its particular mode of jurisprudence. It was no accident, Maine noted, that intellectuals who were imbued with the theoretical categories of Roman law (such as the theory of obligations created under Contract, or of the acquisition and removal of debt, or the continued legal existence of the individual through the principle of Universal Succession) would turn to a whole new set of theological questions: How can humans acquire original sin by means of inheritance from their predecessors? What was the nature of the debt owed by human beings, that it required divine atonement? How can free will coexist with an omnipotent God? When the Romans “ceased to sit at the feet of the Greeks and began to ponder out a theology of their own,” Maine argued, “the theology proved to be permeated with forensic ideas and couched in a forensic phraseology.”²³

The importance of Roman law as a vehicle of progress, according to Maine, thus extended bey...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Acknowledgments
• Introduction: The Classic Tradition
• Part I: Foundational Works in Law, Punishment, and Society
• Part II: Law and Legal Reasoning as Social and Psychological Phenomena
• Part III: The Sociology of Law
• Part IV: Juristic Entities in the Study of Law and Society
• Part V: Critical Perspectives on Law, Crime, and Society
• Contributors
• Name Index
• Subject Index