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NOTE I.: MONTESQUIEU, BENTHAM, AND HISTORICAL METHOD. - Sir Henry Sumner Maine, Ancient Law, its connection with the early history of society and its relation to modern ideas [1861]

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Ancient Law, its connection with the early history of society and its relation to modern ideas, with an introduction and notes by Sir Frederick Pollock. 4th American from the 10th London edition (New York: Henry Holt and Co., 1906).

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NOTE I.

MONTESQUIEU, BENTHAM, AND HISTORICAL METHOD.

Maine’s judgment of Montesquieu is, in effect, that, notwithstanding inevitable defects of method and some individual faults, he came nearer than any other man to founding the historical and comparative study of institutions. It is true, as Sir Courtenay Ilbert has said in a fuller criticism (“The Romanes Lecture: ‘Montesquieu,”’ Oxford, 1904), that “his appreciation of the historical method was imperfect, and his application of it defective”: at the same time his work “prepared for and gave an enormous stimulus to those methods of study which are now recognised as indispensable to any scientific treatment either of Law or of Politics” (op. cit. pp. 35-6).

In 1903, on quitting the chair which I had the honour of holding in succession to Maine at Oxford, I thus endeavoured to sum up Montesquieu’s relation to these studies:—

“If we hesitate to call him the founder, it is only because neither his materials nor his methods of execution were adequate to do justice to his ideas. He aimed (if I may repeat my own words, first written many years ago) at constructing a comparative theory of legislation and institutions adapted to the political needs of different forms of government, and a comparative theory of politics and law based on wide observation of the actual systems of different lands and ages. Hobbes was before him in realising that history is not a series of accidents, but Montesquieu was the first of the moderns to proclaim that a nation’s institutions are part of its history, and must be considered as such if we are to understand them rightly. Much of his history is sound, and many of his judgments are admirable. Yet he failed to construct a durable system, and ‘L’Esprit des Lois’ cannot even be called a systematic book. The materials were still too scattered and uncertain to be safely handled on Montesquieu’s grand scale. Perhaps he would have done better to confine himself to Western Europe. The main defects of his method may be reduced, I think, to two. First, he overrated the influence of climate and other external conditions, and underrated, if he did not wholly neglect, the effects of race and tradition. Next, he had not even an inkling of what is now a fundamental rule of this kind of enquiry: namely, that there is a normal course of development for communities as well as for individuals, and that institutions which belong to different stages are not commensurable terms in any scientific comparison. This is as much as to say that even Montesquieu could not wholly escape from the unhistorical dogmatism of his time. It is perhaps a minor drawback that he constantly seeks for reasons of deliberate policy to account for seemingly eccentric features of outlandish customs, rightly or wrongly reported by missionaries or others, instead of endeavouring to connect them with their historic and racial surroundings. But the result is that many chapters of his great work amount, taken by themselves, to little more than collections of anecdotes and conjectures in which the most incongruous elements, such as the customs of China and the laws of Spain, are brought together at random. Also Montesquieu is not free from the very common error, especially prevalent in the eighteenth century, of attributing a constant and infallible efficacy to forms of government. In short, Montesquieu saw the promised land afar off, but was not equipped for entering it. I do not wish to be understood as affecting to find any fault with him. The greatness of Montesquieu’s conception was his own, and the shortcomings in execution were at the time necessary, or at least natural”

(“The History of Comparative Jurisprudence, a farewell Public Lecture”: Journ. Soc. Comp. Legisl., 1903, at pp. 83-4).

The “historical theory” ascribed to Bentham (p. 113) seems to be not quite so unfruitful as Maine’s criticism supposes. If it is said that societies modify their laws according to modifications of their views of general expediency, this must mean views formed by actual observation and experience, as opposed to the application of dogmatic or traditional rules; and it must be implied that such views have a greater part in the changes of legal institutions than is avowed, or perhaps realised, by the actors and promoters. Doubtless Bentham underrated the power of tradition and custom. Probably he underrated it very much in the case of archaic societies. But his proposition, understood as above explained, is a substantial one and capable of discussion. It is not reducible to the truism that people make changes because they think change expedient, or in other words because they desire change; it signifies that the reasons professed or admitted for making particular changes are often not the real or the most operative reasons. Apparently the passages to which Maine alludes are scattered about various works of Bentham’s and not expressed in clear or positive terms; it therefore does not seem practicable, in the absence of any specific reference, to identify them. But it was obviously natural for Bentham, with his thoroughgoing conviction that all ethical problems can be solved by the utilitarian calculus, to maintain that in fact the greater part of mankind are utilitarians without knowing it.

Maine’s claim of scientific validity for the historical treatment of jurisprudence (p. 114) is now disputed by no one; indeed, if we now find any difficulty, it is in remembering that in 1861 it was still novel, and that its champion at that time had need of much insight and some boldness. His precepts as to the need of observing the caution approved by experience in other kinds of scientific enquiry, beginning with the best evidence and working gradually from what is known to what is obscure or unknown, are still in full force, and might easily be illustrated by the failure of ambitious reconstructions of later date whose authors have neglected them.