Ancient Law was written by Sir Henry Maine and published in 1861. For a variety of reasons, all of which are depressing, you will not see such scholarship or juristic writing again.
The book is famous for the reference to the movement from status to contract. The whole book has profoundly affected my thinking about the law, and I keep going back to it.
As I did this morning when reflecting on the appointment of a Hindu as Prime Minister of England.
I wondered what might be his attitude to caste. That is I believe a tenet or practice of the Hindu religion. It is in my view evil. It represents the reverse of the maxim referred to above, and it is utterly unacceptable in this country – which is committed to equality – at least of opportunity.
I recalled that Maine had something lapidary to say about caste. I set it out below. You will see another reason why we will not see this kind of writing now. (I apologise for the glitches in transition. I am an ageing two-fingered typist.)
The question then arises. Do those agitating for a Bill of Rights to protect freedom of religion say that Hindus should be free to practise and propagate their creed on caste?
Among the chief advantages which the Twelve Tables and similar codes conferred on the societies which obtained them, was the protection which they afforded against the frauds of the privileged oligarchy and also against the spontaneous depravation and debasement of the national institutions. The Roman Code was merely an enunciation in words of the existing customs of the Roman people. Relatively to the progress of the Romans in civilisation, it was a remarkably early code, and it was published at a time when Roman society had barely emerged from that intellectual condition in which civil obligation and religious duty are inevitably confounded.
Now a barbarous society practising a body of customs, is exposed to some especial dangers which may be absolutely fatal to its progress in civilisation. The usages which a particular community is found to have adopted in its infancy and in its primitive seats are generally those which are on the whole best suited to promote its physical and moral well-being; and, if they are retained in their integrity until new social wants have taught new practices, the upward march of society is almost certain. But unhappily there is a law of development which ever threatens to operate upon unwritten usage. The customs are of course obeyed by multitudes who are incapable of understanding the true ground of
their expediency, and who are therefore left inevitably to invent superstitious reasons for their permanence.
A process then commences which may be shortly described by saying that usage which is reasonable generates usage which is unreasonable. Analogy,
the most valuable of instruments in the maturity of jurisprudence, is the most dangerous of snares in its infancy. Prohibitions and ordinances, originally confined, for good reasons, to a single description of acts, are made to apply to all acts of the same class, because a man menaced with the anger of the gods for doing one thing, feels a natural terror in doing any other thing which is remotely like it. After one kind of food has been interdicted for sanitary reasons, the prohibition is extended to all food resembling it, though the resemblance occasionally depends on analogies the most fanciful.
So, again, a wise provision for insuring general cleanliness dictates in time long routines of ceremonial ablution; and that division into classes which at a particular crisis of social history is necessary for the maintenance of the national existence
degenerates into the most disastrous and blighting of all human institutions – Caste.
The fate of the Hindu law is, in fact, the measure of the value of the Roman code.
Ethnology shows us that the Romans and the Hindus sprang from the same original stock and there is indeed a striking resemblance between what appear to have been their original customs. Even now, Hindu jurisprudence has a substratum of forethought and sound judgment, but irrational
imitation has engrafted in it an immense apparatus of cruel absurdities.
From these corruptions the Romans were protected by their code. It was compiled while the usage was still wholesome, and a hundred years afterwards it might have been too late. The Hindu
law has been to a great extent embodied in writing, but, ancient as in one sense are the compendia which still exist in Sanskrit, they contain ample evidence that they were drawn up after the mischief
had been done. We are not of course entitled to say that if the Twelve Tables had not been published the Romans would have been condemned to a civilisation as feeble and perverted as that of the
Hindus, but thus much at least is certain, that with their code they were exempt from the very chance of so unhappy a destiny.
Freedom of religion – Sir Henry Maine – Hindus – caste.