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1、Ancient LawAncient Lawby Henry Maine1861Preface The chief object of the following pages is to indicate someof the earliest ideas of mankind, as they are reflected inAncient Law, and to point out the relation of those ideas tomodern thought. Much of the inquiry attempted could not have beenprosecuted
2、 with the slightest hope of a useful result if therehad not existed a body of law, like that of the Romans, bearingin its earliest portions the traces of the most remote antiquityand supplying from its later rules the staple of the civilinstitutions by which modern society is even now controlled. Th
3、enecessity of taking the Roman law as a typical system hascompelled the author to draw from it what may appear adisproportionate number of his illustrations; but it has not beenhis intention to write a treatise on Roman jurisprudence, and hehas as much as possible avoided all discussions which might
4、 givethat appearance to his work. The space allotted in the third andfourth chapter to certain philosophical theories of the RomanJurisconsults has been appropriated to them for two reasons. Inthe first place, those theories appear to the author to have hada wider and more permanent influence on the
5、 thought and action ofthe world than is usually supposed. Secondly, they are believedto be the ultimate source of most of the views which have beenprevalent, till quite recently, on the subjects treated of inthis volume. It was impossible for the author to proceed far withhis undertaking without sta
6、ting his opinion on the origin,meaning, and value of those speculations. H.S.M. London, January, 1861.Chapter 1Ancient Codes The most celebrated system of jurisprudence known to theworld begins, as it ends, with a Code. From the commencement tothe close of its history, the expositors of Roman Lawcon
7、sistently employed language which implied that the body oftheir system rested on the Twelve Decemviral Tables, andtherefore on a basis of written law. Except in one particular, noinstitutions anterior to the Twelve Tables were recognised atRome. The theoretical descent of Roman jurisprudence from a
8、code,the theoretical ascription of English law to immemorial unwrittentradition, were the chief reasons why the development of theirsystem differed from the development of ours. Neither theorycorresponded exactly with the facts, but each producedconsequences of the utmost importance. I need hardly s
9、ay that the publication of the Twelve Tablesis not the earliest point at which we can take up the history oflaw. The ancient Roman code belongs to a class of which almostevery civilised nation in the world can show a sample, and which,so far as the Roman and Hellenic worlds were concerned, werelarge
10、ly diffused over them at epochs not widely distant from oneanother. They appeared under exceedingly similar circumstances,and were produced, to our knowledge, by very similar causes.Unquestionably, many jural phenomena lie behind these codes andpreceded them in point of time. Not a few documentary r
11、ecordsexist which profess to give us information concerning the earlyphenomena of law; but, until philology has effected a completeanalysis of the Sanskrit literature, our best sources ofknowledge are undoubtedly the Greek Homeric poems, considered ofcourse not as a history of actual occurrences, bu
12、t as adescription, not wholly idealised, of a state of society known tothe writer. However the fancy of the poet may have exaggeratedcertain features of the heroic age, the prowess of warrior andthe potency of gods, there is no reason to believe that it hastampered with moral or metaphysical concept
13、ions which were notyet the subjects of conscious observation; and in this respectthe Homeric literature is far more trustworthy than thoserelatively later documents which pretend to give an account oftimes similarly early, but which were compiled underphilosophical or theological influences. If by a
14、ny means we candetermine the early forms of jural conceptions, they will beinvaluable to us. These rudimentary ideas are to the jurist whatthe primary crusts of the earth are to the geologist. Theycontain, potentially all the forms in which law has subsequentlyexhibited itself. The haste or the prej
15、udice which has generallyrefused them all but the most superficial examination, must bearthe blame of the unsatisfactory condition in which we find thescience of jurisprudence. The inquiries of the jurist are intruth prosecuted much as inquiry in physic and physiology wasprosecuted before observation had taken the place of assumption.Theories, plausible and comprehensive, but absolutely unverified,such as the Law of Nature or the Social Compact, enjoy auniversal preference over sober research into the primitivehistory of society and law; and they obscure the truth
