This was the situation which capitalist production confronted as it, since the age of geographic discoveries, prepared itself for world domination through global trade and manufacture. One should think that this mode of marriage had suited it exceptionally well, and so it also was. And yet – the irony of world history is fathomless – it was capitalism that had to make the decisive breach in it. While it turns all things into commodities, it dissolves all obsolete, ancient relations, substitutes buying and selling, the free contract for inherited morals, historical right – as when the English legal scholar H.S. Maine believed to have made a great discovery when he said that our whole progress against earlier epochs consisted in the fact that we have come from status to contract, form inherited, transcended circumstances to freely contractual ones. Which was of course already in the Communist Manifesto, in so far as it was correct.– Engels, The Origin of the Family, Private Property and the State.
Engels is, of course, right to point to the coincidence of views between Marx and Maine, even though there is little evidence that Maine came to his views from reading the Communist Manifesto. Like Marx, Maine rejected out of hand the 18th century’s Robinsonades, the stories of society's birth in the experience of some exemplary, isolated individual. Yet Maine was certainly on the other side of the political spectrum from Marx. Acton wrote, in a letter to Gladstone, that he found Maine to be a commonplace Tory. However, Acton might have been exaggerating Maine’s mediocrity. His star was descending at the time of his death – Thomas Huxley lamented, a decade after it, that Maine was largely neglected. Ford Maddox Ford was so struck by Maine’s expository prose that he exempted him from his general condemnation of the stupid nineteenth century in Britain. Contemporary anthropologists don’t give a lot of credit to Maine’s scholarship in Ancient Law – his friend and foe, James Fitzjames Stephen, claimed that Maine, at the time he wrote Ancient Law, was but dimly acquainted with Roman law, and had merely glanced at the Pandects on the way, so to speak, to the podium.
While these criticisms may be true, it is also true that Ancient Law is a great nineteenth century text, a codex of imperialist mythmaking. Using the theme of the origin of property relations allows Maine to touch on some of the great sore topics of the imperium – for instance, the relationship between violence and property. His use of the Indian village communes (supplemented by his use of the Russian village communes) introduces into the self satisfied Lockian tradition themes that can only distress it, that are outside of its reach. Even so, of course, Maine fit comfortably into the Lockean tradition, and in his real life, as a jurist in India, extended the rights of private property incrementally, thus adding his bit to the great work. Here we touch on one of those moments fraught with tension: Maine is, perhaps, the only real heir of that part of Burke’s philosophy that was expressed in the Hastings trial. He, too, extended his reverence for traditional social arrangements to other societies – notably, of course, India. (It is always India and Ireland for the British). Yet, practically, this was a move stunted by its inability to justify its own standing – for neither Burke nor Maine were opposed to empire. They could only shunt the moment of initial violence to the category that contained special cases. And so, although Maine takes an anti-Millian, anti-utilitarian approach in Ancient Law, one shouldn’t see this opposition as too absolute. Remember, too, that Maine was associated with the whole cast of imperial bureaucrats who responded with unparalleled criminality to the famine of 1879 – which is spelled out by Mike Davis in his book, the Late Victorian Holocaust. So the Burkean and Millian controversy about law in India, and, by extension, the social arrangements of European imperial states, is at the same time exquisitely evasive about the British responsibility for the state of utter misery and impoverishment that resulted in the series of famines in the late nineteenth century – famines which, as we know, could well have been mitigated by timely interventions, but were instead exacerbated by a punitive system of aid that was more attentive to laissez faire ideology than to human catastrophe. I reference Mike Davis because, if you look at histories of the Raj, at least by British authors, you will find references to famine are confined to a page or a paragraph, so as not to interrupt the pageantry.
LI has already anchored our account of the triumph of happiness in the Great Transformation that brought about the dominance of free trade and the industrial system of production. Looking at the intellectual history of the discourse over the emotions (one of the dimensions of which is to ground and legitimate capitalism and the democratic state) , it is striking – it struck, I think, Maine – how the use of “enjoyment’ and ‘use’ are coupled together as the distinctive characteristics of the relation of the holder of property to the property he holds in British law. One has a sense that the telescoping of enjoyment and use by Bentham is suggested by this legal idiom. Maine’s question about the origins of the property relation is, in one way a question about how it came about that property is defined in terms of the exclusive enjoyment of an object by the propertyholder. Chapter 8, which we want to examine, takes up various aspects of the property relation, finds echoes of them (or, sometimes, does not find echoes of them) in ancient law and custom, and beats a trail back to India, its primitive status trumping Rome’s. We’ll start with the notion of res nullius – which, we have noticed, hasn’t attracted a lot of modern attention. However, for us, looking at Maine’s text in terms of imperial legitimacy, res nullius – the notion that the conqueror’s triumph dissolves all property bonds, rendering the objects free for the conqueror to seize – should be looked at as more than a curiosity.