Property and hierarchy

Sir Henry Maine makes an interesting remark – interesting for the observer of emotional customs who also happens to be interested in the history of commodity fictions – in his lectures on Ancient Law to the effect that, to one looking at Roman law in the nineteenth century, under the influence of Bentham, it might seem as though that ancient law was constructed according to some notion of the happiness of the greatest number:

“The Roman theory guided men’s efforts in the same direction as the theory put into shape by the Englishman; its practical results were not widely different from those which would have been attained by a sect of law-reformers who maintained a steady pursuit of the general good of the community. It would be a mistake, however, to suppose it a conscious anticipation of Bentham’s principles. The happiness of mankind is, no doubt, sometimes assigned, both in the popular and in the legal literature of the Romans, as the proper object of remedial legislation, but it is very remarkable how few and faint are the testimonies to this principle compared with the tributes which are constantly offered to the overshadowing claims of the Law of Nature. It was not to anything resembling philanthropy but to their sense of simplicity and harmony – of what they significantly termed ‘elegance’ – that the Roman jurisconsults freely surrendered themselves.” (79)

Like most legal philosophers of the 19th century in Britain, Henry Maine was impressed by the anthropological knowledge that could apparently be gleaned from the Sanskrit documents that had started coming into Europe by way of the Asiatic society – William Jones and the like. He also – like James Mill, John Stuart Mill, Macaulay, Stephen Fitzjames Stephen and many others – worked in India or in the Indian office. India had a massive effect upon the way these people viewed the upward course of civilization, which was not simply a phrase or a hobby, but the framework for the entire imperial enterprise. They did not simply find their antiquarian interest aroused by tracing myths or concepts back to India, but found in the myth of ancient India which they gradually wove an addendum to, or a corrective to, the Edinburgh Enlightenment notion of progress. On the one hand, you had a middle class (to use Engel’s term for the English managers of capital) that had created and depended upon a structural loosening of the positional market – and on the other hand, as the middle class solidified its gains, you had a model of a society - ancient Indian society – which, with its rules that supposedly threw the symbols of a caste system over every facet of everyday life, indicated the depth of hierarchy not just as a political fact, but as a primal social principle.

So let’s move to the eighth chapter of Ancient Laws, shall we?

In the meantime, here's some Têtes Raides! and a cute claymation doggie.