Eden Oration given by Staff Fellow, Dr Jan-Melissa Schramm
4 December 2016
The purpose of this evening is to gather together in celebration of the achievements of a seventeenth-century Master of Trinity Hall, Dr Thomas Eden, who sought, in his Last Will and Testament dated 24 January 1643, to provide charitably for our College community, past, present and future. Dr Eden directed that on the occasion of this oration, we should commemorate the Civil and Ecclesiastic Laws, our Founder and our Benefactors, and tonight I will do my best to perform that honour by describing the work of one of our nineteenth-century Masters whose corpus of writing continues to exert tremendous influence over the disciplines of comparative law, jurisprudence, and legal history and thus over my own research in the history of ideas. This is Sir Henry Sumner Maine, born in Scotland in 1822, scholar of Pembroke College, Cambridge, Fellow of Trinity Hall from 1845 and our Master from 1877 until his death in 1888.
Trinity Hall has long been known as the lawyer’s college: it was of course founded in 1350 by William Bateman, Bishop of Norwich, to educate canon and civilian lawyers after so many able advisers of his episcopal court were decimated by the outbreak of the Black Death across Europe in the 1340s. Cambridge’s Faculty of Canon Law was closed down by Henry VIII in 1535, an early casualty of the Protestant Reformation, and teaching then focussed on civilian law until English law entered the curriculum in 1800. When Henry Sumner Maine came up to Pembroke in 1840, he established a reputation as both a mathematician and a classicist of distinction, although shortly after he arrived at Trinity Hall as a fellow in 1845, he was appointed Regius Professor of Civil Law at the age of only 25. He was made a Reader of the Inns of Court in 1852, and his richly interdisciplinary approach to legal history was on full display in the work that made his name when it was published to great acclaim a decade later – Ancient Law: its connection with the early history of society, and its relation to modern ideas.
By the time Maine turned his hand to writing Ancient Law, the historical school of jurisprudence in Germany, led by Friedrich Carl von Savigny, had already begun to explore the relationship between the laws of a people and the larger body of their customary practices refined over time, but this methodological approach had as yet made little impact on English legal philosophy. The direction of English jurisprudential enquiry had been determined by the labour of two men, Jeremy Bentham and John Austin, who sought to cleanse (in Bentham’s phrase) the Augean stables of the law from the accretive filth of the Middle Ages by making them clear, consistent and accessible to all – a highly admirable agenda of reform in many ways, but one which was not overly receptive to philology, the beauty of descriptive language, or the romance of English legal history. In J. S. Mill’s memorable analysis, Bentham ‘begins all his inquiries by supposing nothing to be known on the subject, and reconstructs all philosophy ab initio, without reference to the opinions of his predecessors.’ His methodology was empirical, and restricted only to what he could learn for himself: in Mill’s conclusion, he possessed no imagination and he thus failed in ‘deriving light from other minds’. Mill writes:
In many of the most natural and strongest feelings of human nature [Bentham] had no sympathy; from many of its graver experiences he was altogether cut off; and the faculty by which one mind understands a mind different from itself, and throws itself into the feelings of that other mind, was denied him by his deficiency of Imagination.
[…] Imagination [is] that which enables us, by a voluntary effort, to conceive the absent as if it were present, the imaginary as if it were real, and to clothe it in the feelings which, if it were indeed real, it would bring along with it. This is the power by which one human being enters into the mind and circumstances of another. This power constitutes the poet, in so far as he does anything but melodiously utter his own actual feelings […] It is one of the constituents of the historian; by it we understand other times […] Without it nobody knows even his own nature, further than circumstances have actually tried it and called it out; nor the nature of his fellow-creatures, beyond such generalizations as he may have been enabled to make from his observation of their outward conduct.
This idea that narrative art enables us to change places in fancy with another human being and to enter into their feelings is Adam Smith’s famous definition of ‘sympathy’, and it was to serve as the great ethical justification for creative endeavour in the nineteenth century. But for Bentham, all poetry was misrepresentation, and all fiction simply a lazy half-truth that required amendment in the interests of legal clarity. And Austin contributed too to this narrowing of the language of justice, further separating law from looser but arguably more rich ideas of conscience, equity, ethics: for Austin, less is less an ideal than simply a command issued by a sovereign and backed by a sanction – the positive laws of the nation are thus to be differentiated from such metaphorical terms as divine law or even international law, both of which raise problems in thinking about who enforces them or imposes sanctions in the event of a breach. Bentham and Austin’s work in part powered the professionalization of the law as a discrete University discipline in the middle of the nineteenth century; earlier alliances with custom, folklore, rhetoric and storytelling were progressively disavowed as classed exams in law were introduced (1816), the Law Society was set up (1822), and formal exams were required for entry to either branch of the profession (the 1850s). Whilst exchanges between lawyers and writers in the eighteenth century had been open and fruitful – the very first rule of evidence was drafted in the 1740s by Henry Fielding who moved comfortably between roles as playwright, novelist and judge – now relations between authors and lawyers became competitive and combative with Charles Dickens spearheading attacks on the integrity of the Bar: Benthamite reforms of law and the legal profession became the enemy that literature needed in order to claim for itself the moral high ground in the race to best express the needs of the human in the court of public opinion. Literature moved in to claim the spirit of equity as its own whilst law was seen to be narrowing its approach down to questions of process and procedure.
In this inauspicious climate, Maine’s Ancient Law took a very different approach to the wider relationship of law and culture, seeking to learn from the deposits of the past, from an intellectual fellowship with those who had gone before and from what Mill so rightly had called ‘the light of other minds’. Maine began his quest for the origins of western legal thought in Homeric literature, accepting the imaginative texts of the Greek and Roman world as evidence of their culture’s jurisprudential thought experiments: influenced by the mid-Victorian, post-Darwinian idea of origins, he writes ‘if by any means we can determine the early forms of jural conceptions, they will be invaluable to us. These rudimentary ideas are to the jurist what the primary crusts of the earth are to the geologist. They contain, potentially, all the forms in which law has subsequently exhibited itself.’ Maine’s work is not the romantic celebration of the humanitarian history of the law that we tend to find in Dickens’s early sketches or William Thackeray’s fiction, however – there is precious little in it that sings the praises of Magna Carta or the liberties of free-born Englishmen: it is a precise, sustained attempt to understand Europe’s Roman inheritance and its structures of logic which to differing degrees have been absorbed into both continental and English legal systems. All legal science, he writes, is primarily Roman in creation, and the idea of Europe cannot be understood without interrogating what each nation state has done with that intellectual legacy. Why had English and continental legal practice diverged so significantly when they shared an indebtedness to the Twelve Tables of Rome? For Maine, English law as a conceptual system could not be grasped in isolation from the processes which shaped it over time – its emphasis on case-law and precedent, its responsiveness to customary modification, its reliance on jury trials which signalled the importance of community involvement in judicial administration. It worked always from the particular to the general, whereas legal systems which codified their laws into digests and tables (so Maine speculated) tended to work from the general to the particular. Maine had a talent for the compelling generalization, and legal comparativism was born from this intense engagement with Roman law and thought. For Maine, English law was at its most vital and alive when placed in relationship with European nations and with their shared Roman past.
On the one hundredth anniversary of Maine’s death, the then Master of Trinity Hall, Sir John Lyons hosted a conference here, inviting appraisals of Maine’s achievements from across a range of disciplines – law, sociology, anthropology, economics, the history of social thought. The consensus seemed to be that, in jurisprudence at least, Maine posed no real threat to the positivist achievements of Austin, and whilst modern students of law might still read The Province of Jurisprudence Determined, as indeed I did at Law School, no one these days reads Ancient Law. The school of historical jurisprudence, which sought to explain the emergence of national laws over time as an expression of the volksgeist, the spirit of the people, was tainted by association after the rise of National Socialism in Germany in the twentieth century. Perhaps Maine’s achievements are now just one chapter in the history of anthropological science, rather than a contribution to any vital question of ongoing legal relevance.
But – there are several reasons to resist this conclusion. The first is the extraordinary interdisciplinary range of Maine’s analysis, his refusal to see law as hermetically sealed off from larger cultural questions of fairness. Bentham’s and Austin’s idea of black-letter law as something discrete, something mechanically distinct from the swirl of epistemological anxieties that had give rise to a certain set of rules in the first place certainly dominated law schools and indeed private practice during my time as a criminal lawyer. But in many ways, Maine’s corrective to the utilitarian approach was well ahead of its time. The last twenty years has seen the rise of the Critical Legal Studies movement and subsequently communities of scholars working on the relationship of law and the humanities, which is where my own research interests lie, and Maine’s work can be seen leading the way. Let me give you one specific example, Maine is uncertain whether the idea of the equality of all men before the law is the product of Roman or Christian thought, but whilst trying to tease out the pattern of its transmission, he observes that, in any event, ‘it was suffered to have little influence on opinion and practice until it passed out of the possession of the lawyers into that of the literary men of the eighteenth century and of the public which sat at their feet. With them it became the most distinct tenet of their creed, and was even regarded as a summary of all the others’.
This observation – that the work of the formulation of the rule of law in England – was done by creative writers as well as lawyers is a crucial insight in terms of my own work. For English authors of fiction in the immediate aftermath of the French Revolution, the novel form served as a kind of mental thought experiment, a conceptual laboratory for the testing of human values and ethical choices. Could the revolutionary creed of ‘liberty, equality, and fraternity’ be reconciled with Victorian English preference for rather more humility on the part of man before God? Could reform be brought about without violence? Lawyers addressed these questions, but also versatile thinkers like William Godwin and Mary Wollstonecraft who probed similar issues in fiction and in diaries, as did Samuel Taylor Coleridge who switched freely between philosophy and poetry, and of course Maine and his close friend James Fitzjames Stephen, a lawyer next door at Trinity and brother of our Leslie Stephen, who moved comfortably between journalism, literary criticism and works of legal history. And in England, in the aftermath of the abolition of slavery in 1833, most nineteenth-century writers lingered longest on what that idea of equality before the law should look like. What does it mean for all men to be recognised as ‘equal before the law’? The definition of who was fully ‘human’ had been problematic from the earliest attempts to come up with some declaration of the ‘Rights of Man’, with even the American Declaration of Independence (1776) and the French Declaration of the Rights of Man and of the Citizen (1789) thinking only in terms of reasonably affluent male participation in the wider polis. Nineteenth-century authors pressed relentlessly for the expansion of the category of the human, with Mary Shelley, the Bronte sisters, Elizabeth Gaskell, Charles Dickens, and George Eliot amongst others all arguing for the recognition of women, or working class labourers, or illegitimate children as equal to their male compatriots. The novel thus made crucial interventions in political debate, and the formal qualities of the genre are consequently seen to carry ethical weight: novels are fascinated by such para-legal questions such as ‘who can be allowed to tell their own story – who must be spoken for?’ The literary sphere can thus be seen as a space in which the idea of people as ‘self-representing’ is imagined and tested. The novel and liberal human rights discourse are what critics have called ‘mutually enabling fictions’ with each dependent on an individual’s ‘implicit freedom to plot a life story’. As Joseph Slaughter has argued, the novel serves as ‘the predominant formal literary technology in which social outsiders narrate affirmative claims for inclusion in a regime of rights and responsibilities’. The democratic social work of the nineteenth-century realist novel prepares the way, if you like, for subsequent extension of the franchise – as we sympathize with those who seem initially unlike us, we learn to ‘change places with them in fancy’ and this plays an essential role in the process of democratization. So we literary critics like to think that the novel effected some change in the period: eventhe constitutional theorist A. V. Dicey noted in his Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century (1905), that fiction encouraged the transition from individualist to collective legislative agendas in the second half of the nineteenth century: ‘For sixty years novelists, newspaper writers, and philanthropists have alike brought the condition of the poor constantly before the eyes of their readers or disciples. The desire to ease the sufferings, to increase the pleasures, and to satisfy the best aspirations of the mass of wage-earners has become a marked characteristic of the wealthy classes of Englishmen … It may be expected that, as has happened again and again during the history of England, the power of opinion may, without any immense revolution in the institutions of the country, modify and reform their working’ (Dicey, 1926: lxii). The cultural work of literature, then, is part of the reason why England ultimately did avoid a French Revolution of its own.
But if one of the strengths of Maine’s work was its interdisciplinary nature, another was his engagement with questions of justice that extended well beyond England’s borders. I have already mentioned that his comparative methodologies arose from his immersion in Roman law and his intuition that this inheritance shaped a Europe of which England was an integral component. Working in Cambridge in the 1850s, Maine found himself a member of an extraordinary generation of Cambridge lawyers who worked tirelessly to place international law on a sound academic footing. While international law had only recently been positioned as a rather junior branch of the law of war or the law of diplomacy, Cambridge lawyers like John Westlake at Trinity, now helped set up the Revue de Droit International in 1869 and the Institut de Droit International in 1873, which continue to this day. For Maine, the natural rights discourse that he located in Roman law had been pushed out of domestic jurisprudence by Bentham and Austin: it took up its home, then, in the realm of international law. But above all, Maine and his friends Westlake and Fitzjames Stephen took seriously their duty to the practical application of improved laws, both at home and abroad: Westlake helped F. D. Maurice found the Working Men’s College in London in 1854 and firstly Maine, and then Stephen, served long stints as legal members of council in India, drafting important acts of parliament, including the Contracts Act which codified aspects of law in India that had proven resistant to systemization at home. I don’t mean for a moment to suggest that the export of the English rule of law abroad to the very edges of Empire was an unqualified good – far from it, in fact – it’s on ongoing legal controversy – and I am an eighth-generation Tasmanian, whose Scottish convict ancestors arrived with the earliest fleets in Port Jackson and were then sent on to Van Diemen’s Land, where the terrible genocide of the Tasmanian aboriginal people was complete within 70 years of the arrival of the British – this is etched indelibly into all my assessments of the achievements of Empire. But, Maine, Westlake, and Fitzjames Stephen didn’t feel that sitting in an ivory tower was an option either, and all these men dedicated their lives to legal practice as well as legal theory. On his return to England from India, Maine took up the Chair of Historical and Comparative Jurisprudence at Oxford, before ending his career as the Whewell Professor of International Law and Master of Trinity Hall here in Cambridge: when he died, worn out in 1888, his friend Westlake took over the Chair. To the end, Maine’s outlook remained rigorously scholarly, historically inflected, but at same time, cosmopolitan and committed to the amelioration of social problems – all commendable qualities which we need to bear in mind as ideals that remain crucial for our own community in these complicated times. In each of our own spheres of knowledge, we would do well to ponder Maine’s example to be the best scholar that we can be, but also not to shirk our duties in the wider world – even if those duties now assume different shapes.
It is customary on the occasion of Dr Eden’s Feast to remember those Fellows who have left us in the course of the past year and to celebrate our new arrivals. Drs Henry Bradford, Craig French and Martin Ruehl have left us for academic pastures new, and we wish them well in their future careers. On a more somber note, we have farewelled Emeritus Fellow John Collier, who sadly died on the 18th of June, after a lifetime of service to the students of this College and the Law School. Like Maine, JC’s knowledge of the conflict of laws and indeed of Roman law was extensive – polymathic in its range – and we remain deeply grateful for his generosity and kindness to colleagues and his devotion to his students.
Finally, we welcome all our new Staff Fellows, Research Fellows, Fellow-Commoners and Honorary Fellows to Dr Eden’s society of scholars – Alexandra Boyle, Amaleena Damle, Jasmin Fisher, Cohl Furey, Mary Hockaday, Heather Inwood, Claudia Marx, Andrew Sanchez, Rachel Weisz, and Jens Zimmerman. My hope for you all is that you will find the collegiality and the intellectual stimulation here that Henry Sumner Maine found with his legal friends and colleagues when they sat up late over supper in Hall reading the latest Dickens novel whilst drafting legislation designed to help those in need. May your time at Trinity Hall be personally rewarding and rich in its opportunities both to learn and to teach. Thank you.