The intellectual historian John Burrow wrote three provocative pages on the link between Henry Maine and Walter Bagehot at the end of an article for the collection of essays The Victorian Achievement of Sir Henry Maine. A Centennial Reappraisal (1991). Those pages are a perfect introduction to question to what extent Bagehot was inspired by Maine’s Ancient Law (1861) to write the five essays—first published in the Fortnightly Review between 1867 and 1872—which were to be published with a concluding chapter under the improbable title Physics and Politics, or Thoughts on the Application of the Principles of “Natural Selection” and “Inheritance” to Political Society (1872).

Both Ancient Law and Physics and Politics—even though they sold well—were later criticized for being either too generalising or misguided in their use of science. It is quite fair to say that they can be tedious reading in certain parts. Yet, they both give an insight into what these two mid-Victorians were trying to do with history, social sciences and the budding political sciences and how their books gave rise to legal anthropology and to what can be described as a type of non-Marxist description of the history of law. The jury is still out on whether or not this is the main reason for their legacy. Alan Diamond, in his introduction to the collection of essays above mentioned, declares that Maine “was abandoned by law and rescued by the social sciences”. In truth, I intend to do neither because I am not in the field of historical jurisprudence or legal history nor in sociology or anthropology, but in the slightly unfashionable field today of the history of ideas. Yet again, it is through this very approach that I believe Maine still stands a chance of being saved from his particular brand of patriarchal scientific conservatism expressed in Ancient Law. If, in the words of Kuper, this “is a very dead corpse”, why would there be anything interesting left to say about him and about Bagehot’s use of Maine’s Ancient Law? This is when things become more complicated and more interesting than expected.

For one thing, Maine and Bagehot were part of a selection of thinkers who were dabbling in a number of significant roles: for Bagehot, as lawyer, editor of The Economist from 1861 to his death in 1877 as well as banker of his family bank and ship owning business; for Maine, as lawyer, editor of The Saturday Review (1855–1861), legal member of the governor-general’s council in India (1861–1871) and Master of Trinity Hall, Cambridge (1877–1888). This variety of roles meant that their approaches were steeped in a certain context which needs to be retrieved to better understand them. Secondly, both were part of a Victorian elite involved in mid-nineteenth century intellectual life who had an impact on the ideas of their forebears. Lastly, their writings ended up having an influence on the ways in which the Anglo-British constitution and its legal system is still perceived today. As such, they are not obscure Victorians whose works have been lost and whose ideas were “deeply flawed”. Undeniably, their “talent for generalizations” and, in the case of Bagehot, for summarising ideas in witty sentences too clever for his own good, have not served them well. This has turned them, with present-day historical prejudice, into pompous Victorian male generalisers with an ideological penchant for individualism and laissez faire. Yet, what Bagehot saw in Maine, forces us to better see what there is to celebrate in Ancient Law.

The Links between Maine and Bagehot in Context

Bagehot and Maine not only knew each other well but had struck up a friendship, most certainly in the 1850s when they were both writing for The Saturday Review. There is a letter of Maine to Bagehot of January 1873 thanking him for sending a copy of Physics and Politics. Here, the reference is to the fact that Bagehot used Maine’s ideas extensively. No other writer is as quoted in Physics and Politics. Bagehot not only drew on Ancient Law but also on the lesser-read Village-Communities in the East and West published in 1871, based on the lectures Maine gave at Oxford after coming back from India. For Bagehot, Maine was just “the greatest of our living jurists”—no small praise coming from him. It will become obvious how much the content and methodology of Ancient Law had an enormous impact on Bagehot’s writing. In today’s vocabulary, one would say that Bagehot was not only inspired by and quoted Maine extensively but that his use of Maine is guilty of imitation. Bagehot’s understanding of the evolution of political societies in stages especially, and the very sequence of ideas of communities based on Status, to individual modern societies based on Contract, is far too close for comfort.

There is no denying though that both Maine and Bagehot were also steeped, in the first half of the nineteenth century, in Burkean ideals of peaceful political evolution and the new political vocabulary of progress. This new vocabulary was used to describe contemporary circumstances as the product of history and in turn, as Collini, Winch and Burrow made clear in their seminal work That Noble Science of Politics (1983), brought about in Victorian Britain a “science of politics”. Maine and Bagehot also found themselves at the receiving end of the 18th-century debates over the two views of civil liberties. To summarise rather bluntly, let us say that either rational politics came first, allowing the development of civil liberties through the law or empirical commerce came first, generating self-interests which would then be guaranteed by the law. Maine and Bagehot, of course, side much more comfortably with the second idea.

Yet, they also stood at an intellectual crossroads. They were able to look back at the Scottish Enlightenment and use the way in which thinkers such as Hume and Smith had rejected the myth of a social contract as the foundation of political power to define their views (hence Maine’s utter contempt for Rousseau). They were also able to look ahead by using scientific rhetoric applied to political societies based on a Lamarckian understanding of the heritability of acquired characteristics applied to political societies. Both embraced the importance of translating into law the best customs of the country and of using the law as the basis for order and possible, but not guaranteed, future progress. They rejected progress as something inevitable and were all too aware of the dangers of the extension of the suffrage. So, one could say that they are important precisely because they were still able to understand the political and legal vocabulary of the 18th century several Enlightenments but were already giving us—their much later readers—the language to think the future.

Ancient Law (1861) was written before Maine went to India and developed a pessimistic conservative turn of mind exemplified in Popular Government (1885). The thinking of the more positively liberal Ancient Law was done throughout the 1840’s and 1850’s, taking into account the historical method, the “new methods of comparative philology”, scientific findings, secular learnings but also a criticism of Bentham’s dry utilitarianism. As such, it is not a surprise that Bagehot found in Maine a kindred spirit on whose work he could develop his understanding of the “English” Constitution. We have to remember that Bagehot wrote his magnum opus The English Constitution in nine articles first published in the Fortnightly Review from May 1865 to January 1867. It is in November of the same year that he started the series of articles in The Fortnightly Review, which run until January 1872 and ended up becoming Physics and Politics.

Bagehot also fashioned his thought on the numerous books which came out on primitive societies at the same time as Maine’s—from Henry Buckle’s History of Civilization (volume 1 came out in 1857) to Tylor’s Researches into the early history of Mankind (1865). What Bagehot took out of all these books was Maine’s very assumption that “institutions grow and are not made” and that “social development implied the transmission of mental acquired characteristics and attitudes to law and custom”. If for Maine, the point of Ancient Law was “weaving moral and intellectual considerations”, for Bagehot it was “moral motivation first”, putting aside any material cause for progress.

How did Ancient Law inspire Bagehot?

There are six instances in Physics and Politics in which Maine is either quoted at length or cited, but the real starting point of Bagehot is the same as Maine’s in the preface to the first edition of Ancient Law: “The chief object of the following pages is to indicate some of the earliest ideas of mankind, as they are reflected in Ancient Law, and to point out the relation of those ideas to modern thought”.

Both decided to look deep into the past, to make sense of how some European nations had the genius to progress, precisely because of how rare such a move was. Bagehot, in reality, is the one of the two to make sense in greater clarity of what happened between the periods which took a “society of status” to a “society of contract”.

So, Bagehot is not only lifting from Maine the gist of Ancient Law—in other words, how have modern societies emerged out of feudalism and before that, from the communal ties of kinship—but also the very idea that there needs to be a “balance between order and progress, continuity and innovation” to move forward. According to Bagehot, following Maine, there are three stages of development of political societies from 1/ the preliminary age (an age of isolation with what he describes as a rigid “cake of custom”); 2/ nation making (a fighting age in which “imitation” and “persecution” will lead to breaking the “cake of custom”) to 3/ the “age of discussion” (in which custom could give way to reason).

The first use of Maine in Physics and Politics is a four-page-long quotation lifted straight from chapter V on “Primitive Society and Ancient Law” and referring to patriarchal societies. The point here is to take the reader all the way back to what Bagehot refers to as “the dawn of history”, meaning the first stages of society. Bagehot attempts to build a narrative of an “ante-political man” who is guided by his passions, who is unstable and unreliable but who is born into a family in which the role of the patriarch is vital. Politics appears when decisions need to be taken for the family. Bagehot’s second and fourth use of Ancient Law is about this very idea of the patriarch, leader of the family unit. He quotes Maine but only to say that this idea “serves [his present] purpose” which is to show that “the true origin of politics” is not through the patriarch only but really through the imposition of rules.

He then carries on saying that:

It is connected with this fixity that jurists tell us that the title “contract” is hardly to be discovered in the oldest law. In modern days, in civilised days, men’s choice determines nearly all they do. But in early times that choice determined scarcely anything. The guiding rule was the law of status. Everybody was born to a place in the community: in that place he had to stay in that place he found certain duties which he had to fulfil, and which were all he needed to think of.

This piece of intellectual piracy leads Bagehot to declare that the first absolute necessity of these families is to create what he calls “a cake of custom”—meaning a set of rules and customs enforcing obedience. “What you want”, he writes, “is a comprehensive rule binding men together”.

“Till then”, Bagehot explains further:

not equality before the law is necessary but inequality, for what is most wanted is an elevated élite who know the law: not a good government seeking the happiness of its subjects, but a dignified and overawing government getting its subjects to obey: not a good law, but a comprehensive law binding all life to one routine. Later are the ages of freedom; first are the ages of servitude.

The third and fifth use of Maine comes to justify the use of “legal fictions”, that is how first communities “made an artificial unity in default of a real unity” or that “what was made was as well as what was born”. Here using both Ancient Law and Village Communities in the East and West, Bagehot quotes the ways in which Maine explains how “fictions”—such as imagined traditions—are still used in certain countries of the world (in this case India) to impose new rules which have nothing antiquated nor traditional.

And so, in the last inference to Maine, in the chapter on the “Age of Discussion”, Bagehot uses the famous idea of the “movement from Status to Contract” to coin his own of the “age of status to the age of choice”. Bagehot just agrees with Maine that, in the age of choice/age of contract, the individual raises as a person from the unit of the family, to enjoy private property protected by civil laws. What is important here is that laws were the consequence of a national character which had grown through history. This is why, along with Bock, it can be said that “Legal history was properly a history of ideas […]” and that “Jurisprudence so conceived […] could provide the foundations for an historical social science.”

Why is this important for Physics and Politics?

Physics and Politics—like Ancient Law—is unjustly ignored for its faulty use of anthropology and for its confused sociology (which both books are guilty of). Nevertheless, Bagehot did identify necessary stages of political progress but also certain attributes of national character adapted to different political regimes. Today, the notion of “national character” has more than a hint of Victorian references to “supremacy” and “races” which are deeply flawed and better left to the 19^th century. In truth, Bagehot and Maine were sincerely curious thinkers who despite trying (in the words of Collini) to “provide a scientific legitimation of the prejudices of a governing class” do come up with a legal and constitutional vision of the Anglo-British system which cannot be easily swept aside.

One reason why Bagehot was questioning why some nations stagnated while others thrived, and which does not appear in the text, comes out clearly in the articles he was writing for The Economist at the same period: he was concerned with the situation in France and its implications for England. From 1870—when he was writing the last two articles of what would become Physics and Politics—until 1872, when he published it, Bagehot penned no less than fifteen articles on France, covering the war against Prussia, institutional changes, the end of the second Empire and the birth of the Third Republic. Over the same period, he was also writing on English institutions, suffrage for women, the monarchy, English politicians and the House of Lords. As was so often the case for English thinkers, he used France as an example of what not to do. By comparing the two countries, he was making sense of the differences in their political evolution.

That is why, in Physics and Politics, “Tradition and Reason” which are at the heart of the tension for the nations able to break “the cake of custom”, mirror “the Dignified and Efficient parts” in The English Constitution. The dignified parts were the ones “which excite[d] and preserve[d] the reverence of the population” and the efficient parts were those which “work[ed] and rule[d]”. Bagehot constructs a theory to show that the English Constitution is the product of centuries of evolution, which have taught the English nation, unlike the French, how to be free. Becoming free, or rather capable of freedom, was an educational process which required first accepting coercion—tradition and dignified parts—before moving on to more mature stages—reason and efficient parts. This evolution also gave such communities certain common features through the “imitation” of the best customs, which provided them, in return, with a national character befitting a certain type of governance. So, Bagehot expands the original ideas of Maine to make them his own.

Evolution was the key, but he insists—again resorting to Maine—that: “The first thing to acquire is […] the legal fibre—what sort is immaterial; a law first—what kind of law is secondary; a person or set of persons to pay deference to—though who he is, or they are, by comparison scarcely signifies”. To quote Devisch: “The legal development of a nation is a barometer for its progress”. Bagehot is also very clear in his declaration that whatever the law and whoever the elite, what counts is the deference to institutions which have an ancestral foundation rooted in the people. Such revered institutions produce traditions which are not to be broken, not because of the law, but because they carry the immemorial force of time. This is what the French had lost in 1789, and all through the institutional upheavals of the 19^th century.

More than anything, Bagehot links progress to a moral improvement based on the value of deference to the law. Maine does not spell it out in the same way, but he does make clear that it is the ability of certain societies to reach intellectual maturity that allows the progression from one stage to another. In chapter IX in Ancient Law on the early history of contract, Maine declares that “morality has advanced from a very rude to a highly refined conception”, that “real contracts show a great advance in ethical conceptions”, that a person has to be of “full intellectual maturity” to be “bound himself by an engagement”.

Bagehot is more straightforward, perhaps because he is less “narrowly legal” than Maine: while tradition is the stabilising force, the law can adapt and is, counter-intuitively, the true evolutionary force for change. Freedom arrives when primitive fear is transformed into a tradition of respectful obedience which then conserve their stability through deference for the past. In this sense, Bagehot, not Maine, shows how the fragile transition from Status to Contract may take place. This is also why Bagehot, unlike Maine, does not look for a codification of the common law.

Conclusion: What does it say about both their political and constitutional ideas?

With Ancient Law, in the words of Fuller, “we cease to worry ourselves about [the] literal accuracy [of Maine’s account of the development of law] and treat it as a kind of allegory, full of insight into the processes by which law grows”. The same can be said for Physics and Politics, in which the reader ends up wondering if there is not something more profound than the text itself. What Bagehot is describing in “the age of discussion” is the advent of politics through debate which can only find its full expression in parliamentary government.

Bagehot saw the transition from aristocracy to democracy in his own country in the 1860s as a dangerous period, which needed to be handled with care to ensure that freedom would not be lost. Like Maine, Bagehot did not trust society, and certainly not what he referred to as “the mass”, to be able to make the transition peacefully. However, unlike Maine, he did trust parliamentary government to do so, slowly. This is where Bagehot, who died in 1877, would most certainly have viewed Popular Government with less enthusiasm than Ancient Law. For whilst holding anti-democratic views, Bagehot still had faith in the idea that a “government by discussion” could allow a nation to evolve from custom to debate.

By “government by discussion”, Bagehot essentially means a government that counteracts the passions, but he also means a government able to work with the inherited qualities of a given nation. When applied to the English, this meant that certain characteristics in their nature, such as “animated moderation”, suited them to a type of governance best suited to the freedom of the individual. In effect, he was describing English political mores.

Most certainly, Bagehot was more positive than Maine, and that is why their belief in laissez faire and individualism translates differently: Maine was in favour of a hereditary aristocracy, Bagehot in favour of a meritocratic one. Bagehot valued the role of morality and gentle evolution but also of political manipulation, when Maine valued ideas in a reasoned and realistic way above the political playing field. What one finds in them are the two sides of the same Victorian elitist coin. Burrow offers the opinion that “with a similar view of the dangers, Bagehot, while deploring a further widening of the franchise, had gambled on deference; Maine, more impatient and, by the eighties, more disillusioned, turned to the legal barriers of a written constitution”. Without any doubts, it is in these two solutions emerging from their various works, that Bagehot and Maine can be seen addressing the same questions the UK is still facing today, especially after Brexit.

In the end, one always ends up going back to the question of the law and of the uncodified “Anglo-British constitution” as the best regime to sustain liberty. Whether we can ever move out from such perennial questions remains to be seen but, more than anything, a joint reading of Maine and Bagehot, reminds us that our modern political way of thinking laws and customs, “based on the transmission of certain moral characteristics”, starts with them.

Catherine Marshall

Catherine Marshall est professeur des universités en histoire et civilisation britannique à CY Cergy Paris Université. Elle est l’auteur de Political Deference in a Democratic Age: British Politics and the Constitution from the Eighteenth Century to Brexit, Cham, Palgrave Macmillan, 2021. Elle co-dirige, avec Céline Roynier, l’ouvrage Twenty-First Century Perspectives on the Scholarship of AV Dicey. The Enduring Legacy of a Victorian Constitutionalist, Oxford, Hart Publishing, décembre 2024.