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Ancient Law Summary

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To understand the institution of law in modern society, you must first understand institutional law in historical terms. Henry Sumner Maine in his book, Ancient Law, discusses the influence of Roman law and the effects it has on European law, specifically the move towards a more progressive society rather than a primitive or traditional society. Maine believes that as society progresses, the emphasis on kinship dissipates, and the emphasis on individuality resonates into a progressive society but will not result in a distinct modern form of law. Karl Marx also places an emphasis on the importance of historical terms in The Communist Manifesto, but Marx bases his claims on a society that relies on the free market to survive. Maine and Marx generally …show more content…

Maine believes that modern law is dramatically different than law that exists in most social worlds or historical law. The historical approach Maine takes is a binary approach in which the traditional society such as Rome is revolved around kinship, meaning familial relations, transitioning into societies that focus on individual rights in modern society. Political ideas that were so powerful and transformative in the 18th century that it brought about events such as The French revolution. Ideas came into the world through classical Roman law had real impact. The traditional society is one that is focused on status which is when individuals occupy a niche, master that craft, and stay with that niche. The niche consisted of familial ties in which the status of your family would be determined by the norms you have conformed to. The norms consist of families or groups of families, known as clans, are doing the social work of organizing the society and the conflicts it may have. The capacity that an individual had in society was completely dependent their status in the family unit. This has to be broken down in order to allow individuals to emerge from the family units and live in a society based on individual contracts. Contracts are voluntary stipulations in which duties and obligations are there and you choose to follow it, and Maine believes contracts are necessary for progress. Maine states, "In Western Europe the progress achieved in this direction has been considerable. Thus, the status of the Slave has disappeared - it has been superseded by the contractual relation of the servant to his mater. The status of the Female under Tutelage, if the tutelage be understood of persons other than her husband, has also ceased to exist; from her coming of age to her marriage all the relations she may form are

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