Why this reading, why now? Well, I doubt it's because we're supposed to take particularly seriously Henry Sumner Maine's conclusions about the origins of law in "primitive" society (that will be my one allotted "scare quote" for the word "primitive". This post will be far too cluttered, otherwise, and it's a bit of a mess as it is). In a 1950 article Robert Redfield picked over and in many cases rejected Maine's substantive arguments on that front.
(Amazingly, outside the discipline we can see Maine cited with approval for this purpose as recently as 1981--by legal stuntman and "human Pentium" Richard Posner in his book The Economics of Justice.)
And while Maine's accounts of changes in Roman law--he spends a great deal of time discussing the Patria Potestas, the principle of the "Power of the Father", and its changing purview with regards to both adult sons and wives--and the effects of these changes on subsequent European law are fascinating and may or may not represent an accurate reading of legal history (I'm way, way out of my depth on that one), I doubt that this is what we're looking for either.
All of which is to say that we probably shouldn't read Maine as "presentists", looking for present-day utility in his 150-year-old conclusions. Rather, we should follow Stocking's injunction and take a "historicist", affective and understanding approach in reading Maine.
Maine is concerned with the same sort of problem that has exercised anthropologists ever since: how to conceive of and explain the difference between our society and others. In Maine's case, he's interested in the difference between modern, "progressive" societies and "primitive" (and as Redfield points out Maine in many ways allows late and early Roman society to stand in for those two types of society, respectively).
Maine's key contribution to answering this question is contained in his concluding paragraphs: most succintly, with his famous assertion that "the movement of the progressive societies has hitherto been a movement from Status to Contract". This shift is such that "from a condition of society in which all the relations of Persons are summed up in the relations of Family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of Individuals ".
This idea has had a lasting effect in social science. Redfield, for instance, still approved of this as a substantive point in 1950. To some degree Maine's point is mirrored in Tönnies' gemeinschaft/gesellschaft distinction, in Weber's "disenchantment" of the world and his concerns about the "iron cage" of rationalization, and in Durkheim's distinction between mechanic and organic solidarity. I think we can also see Maine's desire to posit a clear break between primitive and "progressive" societies echoed somewhat in contemporary work that depends on the notion of a postmodern "rupture" with the coming of post-industrial, post-Fordist capitalism. (I would put some of the Comaroffs' writings on South Africa--their "Occult Economies" article, for instance--in this category. I believe some of Appadurai's work on Modernity also fits here, as well as a lot of early 1990s work on globalization by Anthony Giddens, among others. Harri Englund and James Leach give a good summary--and critique--of this line of research in a 2000 article.)
Like the fascination with the primitive in general, then, the impulse to identify the characteristics that mark a given society as pre-modern, modern, or post-modern can be problematic. But if it's problematic it's because this type of model seems to have explanatory power, or else people wouldn't return to it again and again.
So thanks, Henry Sumner Maine. I think.
(I'm very open to correction about the genealogies I construct above. Get your sticks out--I fear I may have just hoisted up a plump piñata just waiting for a pummeling.)
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8 comments:
Awesome read, Mark! The extra links really help tie the piece together, as well as your references to scholars' work of which I am more familiar.
What are your own thoughts on Maine's assertion about progressive societies? I'm having trouble reconciling the dichotomic approach (e.g. Maine, Durkheim, Tönnies, etc.) and the tricohotomic approch (e.g. the three notions of modernity.) Back in my days of studying the foundations of social theory, I also found discussing societies in black-and-white terms as very problematic, but even Durkheim assumed there are shades of gray. Can we assume the same with Maine?
I think so. His account of the history of Roman law allows for elements of the "Status" or primitive system "surviving" (in the Tylorian sense) until relatively recently. In fact, his whole method is based on supposing that we can still see trace elements of the older system in the newer one. I suppose I'd say that any model that envisions a "progression" from one end of a dichotomy to the other allows for shades of gray (what's gray but the middle sections of a black-white spectrum?).
So maybe my equating of his Status/Contract split with later models of modern or postmodern "rupture" is on the wrong track.
Oh, and I realized that I left out the basic tradition/modernity dichotomy from my essay...bit of a schoolboy error, that one.
The three notions of modernity? That's a new one on me. What's the reference on it.
You mentioned it yourself when you spoke about pre-modern, modern and post-modern. Perhaps I misinterpreted what you meant. I'm definitely more familiar with modern and post-modern, labels which only recently am I starting to come to terms with. =)
I think your genealogies are correct, but I also think that anthropology has moved beyond the "globalization fad" of the 90s and has realized that the sociologists' heralding of a new post-industrial era is flawed in some respects. The social sciences themselves find their origin in European societies that were undergoing what was certainly a radical change in social relations. However, if we look at human history from a perspective grounded in a continuum of "development," "modernization" or "progression," then we fall into the trap of Eurocentrism all over again. This is true even of the globalization critics; there seems to be an underlying current of thought that accepts capitalist society as an inevitability, rather than as a contextualized anomaly, like any sort of social formation. To speak of "post-industrialism," aren't we falling into the same models of society provided by the 19th century European social scientists that place societies along a timeline of development? The categories of pre-modern, modern, and post-modern still need further modification, and perhaps elimination completely from the social scientific discourse (am I going too far in this suggestion?). The category of "modern" especially, since it is the unmarked term in the equation, needs further explanation, although I know this has been the project of several authors for decades now. Still, I feel that if we continue to use these categories, even if we critique them, then we are simply continuing to support a progressivist model of society which is really no different than the model of society found in imperialist discourse. I don't quite know where I am going with this, and I don't mean to suggest an overly cultural relativistic approach to doing anthropology. I think that Maine's work is useful in understanding the genealogy of European jurisprudence, but without adopting too much of a cultural relativistic stance, isn't it our job to interrogate this discourse about modernity? Perhaps I am stating the obvious here, but it's something that has come up in my teaching in the last few months so it has been on my mind.
First off, thanks for setting me straight on the trichotomy, Lee. I think the classic way to do it is to split it into traditional, modern, and postmodern--except that the term "modern" gets thrown around in so many contexts (Early Modern can mean 1500-1800, Joyce was a Modernist, the "Third World" is attempting to "modernize", etc...) that it loses any real analytical purchase.
I think this is where work on "alternative modernities" fits in, along with efforts to describe, say, witchcraft as "modern" or as a part of a different modernity as opposed to a holdover of tradition (cf. the Comaroffs, Geschiere, etc).
As for TSF: I want to agree with you. I will happily concede that a lot of the rupture talk is overblown, and that in setting us on this path of looking for clear divisions between primitive and modern societies Maine was setting some dangerous precedents. I'm a little uncomfortable, however, about completely throwing out any of these distinctions. As you say, there are well-known problems with the terms "modern", "pre-modern" (this one in particular), "postmodern". There's a difference, however, between recognizing changes in how society is organized as a matter of description (the rise of flexible labor and just-in-time production, for instance) using terms like "modern" and "postmodern" as shorthand, and suggesting that there is a single progression from one state to another that will be desirable for societies to follow. I'm not sure how merely using these terms as analytical categories supports a prescriptive project.
Of course, as you say, what we should really want to do is critically interrogate discourses of modernity. I'm fond of James Ferguson's essay on the subject in Global Shadows (specifically chapter 7, "Decomposing Modernity"). He gives what I think is a solid overview of the tradition/modernity distinction, treating it as a "native category" of sociologists, policy makers, historians, and members of the public in both "developed" and "developing" countries. The key here, however, is the move from "modernity" as telos, as endpoint of history, to "modernity" as status, as a point in a hierarchy of material wellbeing.
His concern is with showing that attempts to overthrow the old traditional/modern distinction by (entirely correct) arguments about its failures as an evolutionary model of history risk ignoring very real material differences between parts of the world that are perceived as pre-modern and parts perceived as modern.
My point in bringing this up is somewhat different: that in throwing out the pre-modern/modern/postmodern distinction on the (entirely correct) grounds that it implies a false (and maybe harmful) historical trajectory, we risk giving short shrift to important social, cultural, and economic changes.
But maybe I'm exaggerating the problem; maybe we don't need the shorthand after all.
It's an interesting dilemma. I guess my biggest issue with the terminology is an epistemological question. Certainly, when looking at global division of labor, it is useful to think in these terms, but all the while understanding that they describe particular moments in capitalist development. That's why I like Wallerstein's dependency theory because it describes different societies from the standpoint of how they participate in the global capitalist system. Since I would tend to agree with those who see no "outside" to capitalism, then we must accept it as the hegemonic form of social organization. I guess what I'm trying to say is that while these categories are useful as descriptive terms, they are fundamentally tied to an understanding of capitalist development. The danger comes in assigning some degree of developed rationality (not in the Weberian sense, but in a much cruder way) to different societies. Your point is well-taken, though, about looking at modernity not as telos but as status; I think we could agree on that approach.
I should have said "economic organization," not social organization, although obviously the two are not mutually exclusive.
Lee, can you help explain to me How did Maine seek to show that the idea that law served to protect individual rights was the product of a particular time and place?
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