K. B. Smellie on Henry James Sumner Maine

“Maine's direct influence on political thought was to be slight. His influence on the study of law was enormous and therefore his indirect influence on politics has been enormous too. Intending to show law as a growth, he in fact greatly increased our control over it as an instrument.”

“In combating what seemed to him the insular arrogance of Bentham and the obscurantism of the legal profession, he emphasised our debt to Rome. He saw Roman law as the institution mainly responsible for the distinction between progressive and stationary societies. This emphasis on Roman law was invaluable. It meant that Maine faced the most difficult problems of history—the effect of borrowing by one people of the institutions of another and the securing of the same social results by different peoples using different methods.”

“Maine challenges it [democracy] as an aristocrat. He agreed with Machiavelli that the world is made up of the vulgar. Civilisation is a hardly-won habit which force created, habit perpetuates, and legal skill protects and elaborates. In Ancient Law we see the germs of modern anthropological methods. Popular Government suggests the psychological studies of Graham Wallas. But the psychological insight is distorted by a tendency to see civilisation as contract writ large.”