Henry Maine and the Re‐Constitution of the British Empire
| Date | 01 July 2012 |
| Author | Coel Kirkby |
| DOI | http://doi.org/10.1111/j.1468-2230.2012.00919.x |
| Published date | 01 July 2012 |
REVIEW ARTICLE
Henry Maine and the Re-Constitution of
the British Empire
Coel Kirkby*
Karuna Mantena,Alibis of Empire: Henry Maine and the Ends of Liberal
Imperialism, Princeton: Pr inceton University Press, 2010, 269 pp, hb £27.50.
You might find it strange that a political scientist has written the most important
study of Sir Henry Sumner Maine in over a century. If you are familiar with his
reputation, you will be surpr ised anyone has bothered to study him at all. Few
intellectual reputations have suffered as steep a posthumous decline as his.No one
today would claim Maine as an intellectual ancestor, nor refer to his work except
for the odd obscure footnote.Yet in the mid-late nineteenth century, Maine was
the towering British legal scholar, holding a succession of prestigious academic
posts in Cambridge, Oxford and London.1His published works, especially
Ancient Law (1861) and Village Communities in the East and West (1871), were
recognised as classics in their time and were debated by leading thinkers from
John Stuart Mill to Mohandas Gandhi. Maine served as the Legal Member of
Governor-General’s Council in India from 1862 to 1869.Dur ing these years he
also published many popular pieces in magazines like the Saturday Review and St.
James’s Gazette. Scholar, lawyer, imperial administrator and public intellectual:
Maine appeared to have been the most eminent ofVictorians.
Why then has next to nothing been written on his ideas in the last century?
Karuna Mantena does not answer this question in Alibis of Empire. At least,
not directly. The two dedicated studies of Maine’s thought coinciding with the
centenary of his death failed to persuade anyone else to take more than an
antiquarian interest in him.2In Sir Henry Maine: A Study inVictorian Jur isprudence,
Raymond Cocks gives an admirable exposition of the key elements of Maine’s
legal thought.3But in his attempt to show the reception of Maine’s ‘histor ical
jurisprudence’, Cocks looks to sociology, anthropology and legal positivism, and
*St Edmund’s College, Cambridge.
1 His most important posts included: Regius Professor of Civil Law at Cambridge, 1847–52;
Vice-chancellor of the University of Calcutta;Fellow of Corpus Chr isti College, Oxford,1867–79;
Corpus Professor of Jurisprudence, Oxford, 1869–78; Master ofTrinity Hall,Cambr idge,1877–88;
Whewell Professorof Inter national Law, 1887–88.Thelast two posts ended with Maine’s early death
– he was never a healthy man.
2 There is also a rigorous biography and a study of his social thought: G. Feaver, From Status to
Contract: A Biography of Sir Henry Maine 1822–1888 (London: Longmans, Green and Co, 1969);
J. W. Burrow, Evolution and Society: A Study in Victorian Social Theory (Cambridge: Cambridge
University Press, 1970).
3 R. Cocks, Sir Henry Maine: A Study in Victorian Jurisprudence (Cambridge: Cambridge UP, 1988);
N. Duxbury,‘Review: Making Legal History’ (1989) 52 Modern Law Review 856.
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© 2012The Author.The Modern Law Review © 2012 The Modern Law ReviewLimited. (2012) 75(4) MLR 655–673
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
so misses its crucial influence on the ‘pragmatic’imperial governance reforms in
the late century.The second study is a collection of papers on Maine given at
Trinity Hall, his old Cambridge college, in 1988.4This effort at ‘rehabilitation’,
as Tony Honoré quipped, has inspired virtually no later legal scholarship.5In
contrast to these studies, Alibis of Empire is an intellectual history that places
Maine’s thought firmly in the hurly-burly of nineteenth century debates on the
crisis of imperial r ule, and the nature of ‘traditional society’, codification, and
property. His ideas are far less easy to dismiss when one appreciates their success
(outside jurisprudence) in shaping a new imperial ideology after the shock of the
Indian Rebellion (or Mutiny) of 1857.Through a subtle treatment of Maine’s
ideas, often caricatured by his own catchy dictum that law progressed‘from status
to contract’, Mantena argues that the legacy of his‘account of primitive society
would be used to justify the conscious retreat from freedom of contract and the
defense of custom under the rubric of indirect rule’ (17). The liberal idea of
‘assimilating and modernising natives’ gave way to a hardening of the distinction
between traditional and modern societies.As the grand civilising justifications lost
their power, an ideology of late imperialism replaced it with a new claim to
protect native society from anarchy, which ‘functioned both as pretext and
solution, as an alibi for the f ait accompli of empire’ (11).
This review will first describe the arc of Mantena’s argument in Alibis of
Empire where Maine’s ideas catalysed a shift from an imperial ideology of
universalist justifications to one of culturalist alibis during the nineteenth cen-
tury.6British governors before 1857 accepted a moral duty to transform their
Indian subjects from untutored barbarians to gentlemen like themselves by
imposing English laws and institutions. From this familiar narrative, Mantena
then argues that Maine developed ideas underpinning a new ideology, quite
distinct from its ‘liberal’ predecessor, in response to the trauma of the Indian
Rebellion (chapter 1). She then analyses Maine’s interventions in debates con-
cerning ‘traditional society’ (chapter 2), codification of law (chapter 3), and the
nature of property (chapter 4), which helped replace the universalist justifications
for rule with new culturalist alibis. Native ‘society’, both combustible and resis-
tant to change, demanded the pragmatic inventions of customary law and tra-
ditional leaders to protect it from dissolution (chapter 5). Maine’s dubious legacy
was ‘indirect rule’, which was created in India and transplanted to Africa to
govern native subjects of empire unsuited for the democratic politics of their
white peers.
The second part of the review suggests how Alibis of Empire might reconnect,
rather than rehabilitate, Maine’s ideas to two concerns of legal scholarship today.
The jurisprudential question asks in what ways the sociolegal critique of
legal positivism re-creates or reformulates Maine’s critique of the analytical
4 A. Diamond (ed), TheVictorian Achievement of Sir Henry Maine:A Centennial Reappraisal (Cambridge:
Cambridge UP, 1991).
5 T. Honoré,‘Review:The Victorian Achievement of Sir Henry Maine’ (1995) 110 English Historical
Review 236.
6 Readers interested in a critique qua intellectual histor y should begin with C. A. Bayly,‘It Takes a
Village: Review of Alibis of Empire: Henry Maine and the Ends of Liberals Imperialism by Karuna
Mantena’ London Review of Books 26 July 2011.
Henry Maine and the Re-Constitution of the British Empire
© 2012 TheAuthor.The Moder n Law Review© 2012 The Modern Law Review Limited.
656 (2012) 75(4) MLR 655–673
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