The Past Is Not What You Think It Is

An Exposition of Maine’s Ancient Law

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The history of political ideas begins, in fact, with the assumption that kinship in blood is the sole possible ground of community. — Maine, Ancient Law

Not till some money changes hands it aint agreed. — McCarthy, Blood Meridian

Introduction

I’ve been getting requests for reading lists since Imperium started. Whatever skills I might have as a writer, a publisher, a businessman, the one thing I’m good at is being a reader. This doesn’t seem like much of a skill, but being a great reader is a criminally underappreciated skill. Not just understanding a text, but excavating lost thinkers, drawing together threads, seeing connections no one else has seen. I value it in others much more than original thought.

I dig for those lost thinkers who completely upend modernity, and one such thinker is Henry Sumner Maine. Like many of our dead authors, he was huge in his time, but now forgotten. His major text Ancient Law revolutionized the study of law, and if it’s read a little more broadly, it’s like a grenade that can explode our ideas of the past, and even of all philosophy.

In the next two articles we are going to step the reader through some of the transformative ideas in this book. We never advertise any of our books on this Substack and this is not an advertisement. But if you would like to buy it, you can find it here.

Ancient Law is chock full of cold showers for liberals, but also for some of those ideas current in the radical right that need to be pushed out. Law may not seem like a particularly important topic for us as a movement, because we’re nowhere near being able to determine the law. But this is not its value to us. Understood properly, law really becomes the foundation of everything, the basic determinant of all disciplines and endeavours, even of things like metaphysics. Law is upstream of worldview.

Perhaps the redpill that runs all the way through the book, the one thing you will get out of it if nothing else, is that the past is not what you think it is.

The Way We Were

A couple of years ago Keith Woods interviewed me on his YouTube channel about another cold shower of a book, The Ancient City, which also undermines silly ideas about the past. To give the audience a sense of the seismic shift described in the book, I framed it this way:

Suppose that a century from now, some cataclysm has destroyed modernity and people are picking through the ruins, trying to figure out what the West looked like. But instead of finding Christ, St. Paul, Augustine, Aquinas, and Dante, all they find is half a book by Locke, the complete works of John Rawls, maybe a few fragments of Hegel, and a few chapters of Joel Osteen. Would they have a robust picture of the West?

This is what we’re doing when we consider Solon, Plato, and Aristotle to be the beating heart of paganism. The most famous figures from the classical past—apart from a few generals, and all the villains—were the least based pagans. They do not represent tradition; they represent a critique of tradition. And because what came after was anti-pagan, only the figures who were the most hostile to the real pagan worldview were elevated. This is what The Ancient City teaches.

After giving this interview I got many angry responses from people who love marble statues but do not like to read very widely. Which is too bad. I like marble statues, who doesn’t? But I also like what it is that built them, and what laid the foundations for their being built in the first place. Those foundations are not the classical world, they are the archaic world. And the classical world was often woke and hostile to the archaic world. The value of Maine’s Ancient Law (as with The Ancient City) is that he makes absolutely clear that the one is hopelessly in tension with the other. And the reader who has a folkish worldview will recognize the archaic world as identical with folkishness. The classical world at its best was indifferent to that, and at its worst it tried to destroy it.

Liberalism relies on myths no less than any other ideology, and it legitimizes itself with two mythic claims: 1) that it is universally valid, and 2) that it is sanctioned by an original instinct and impulse. At Imperium we have mercilessly attacked the first myth, and the response to us indicates that we’ve struck a nerve. What Maine and others have done is to attack the second of these myths, which is more commonly known as the state of nature, where man is originally free but then enters into a state of thrownness and inherited culture, a state which is secondary and derivative. Maine shows that the reverse is the case, focusing specifically on law, where there is an abundance of evidence.

Our folkish theory denies liberalism universality; Maine’s work denies liberalism originary “firstness”. This pincer move is fatal to modernity. However, it is also fatal to some sacred cows that even dissidents venerate—some are even ancient. This includes such things as freedom, natural law, popular sovereignty, logos, the individual—all of these are encapsulated under what we have called Axiality. You cannot read this book and come away thinking that Axiality is either logically necessary, or the original state of mankind.

Maine’s overall thesis runs something like the following:

The most ancient form that law takes is the absolute command of the Aryan House Father or *déms pótis,¹ which he addresses to his wives, children and slaves. Later, after the families have been organized into permanent clans and tribes, the patriarchal sovereign is in a position to hand down judgments in what we might call “civil law” between the various House Fathers. Among the Greeks these judgements were called Themistes; the Germanic word for them is dooms. These are separate, isolated judgements, not connected by any thread of principle. The Themistes are not quite yet proper laws, but individual decisions in disputes between households. Similar judgements over time become fixed as custom; the Greek name is dike, later coming to mean “justice”. Nomos, or “law” occurs nowhere in Homer. Ancient jurisprudence resembles a kind of international law, filling only the gaps between families and applying only to the heads of families, who each retain absolute jurisdiction over their household. Over time though, the sphere of this “civil law” is widened. Tradition is seen as burdensome. The agents of change—legal fictions, equity, and legislation, which we will discuss—are brought in to overrule tradition. More and more, the jurisdiction of the House Father is encroached upon. Eventually, he is more or less displaced by the state, but the natural conservatism of the ancient world refuses to do away with many of the institutions, so it recombines them into new forms. By the time of late antiquity, a new morality has replaced the old, brought in to justify this revolution, and to pretend like it was there from the very beginning.

This is all very familiar to us today. It could have been said about the Enlightenment. In fact, we must consider the classical world as having undergone its own “enlightenment”, which like the modern one, was no actual enlightenment, but the hollowing out of a society and recasting it according to new principles of convenience, symmetry, simplification, and above all, political expediency.

Let us look at each of the mechanisms by which this happened.

Legal Fictions

The state is not in itself a bad thing, but it has interests of its own. It is hungry for power. It wishes to grow—it calls this “progress”. What stands in the way of progress? Tradition.

Like an adolescent, the state in early times is not in a position to challenge tradition. Tradition, the powerful father which gave it birth, is still too strong. So the state must go around tradition without challenging it. What it wants must be framed as being in conformity with tradition. The answer is called a legal fiction.

An example of a legal fiction would be adoption. In reality the adopted child is something other than a natural child. For the purposes of the law though, the adopted child is the same as the natural. The purpose of the legal fiction is twofold: 1) it changes the law, and 2) it conceals the change. The ancient law in all IE peoples forbade inheritance to pass to anyone but the son; the fiction of adoption changed this, while insisting that no change had occurred. The fact is that the law of inheritance has been altered; the fiction is that the law remains what it always was.

Power always wants to increase its authority. But early society hates change, and so legal fictions are just what the doctor ordered. They are not merely fraudulent, they are serving a purpose, often the purposes of elites.

In IE societies, all property is owned by the House Father. The son is unable to own property, enter into agreements, or manage his legal affairs himself. So, in order to enfranchise the son, the fiction of emancipation was brought in.

Sometimes the father would do this for his most beloved sons as a sign of affection, granting them independence. Sometimes the father would be more or less obliged to do so by political circumstances within the tribe. However, the traditional rules of inheritance worked strictly according to agnation (patrilineal descent), and an emancipated son was no longer part of the family, therefore no longer entitled to any inheritance.

The empire of the father had indeed received one of the earliest blows directed at it through the recognition of Emancipation as a legitimate usage, but the law, still considering the Patria Potestas to be the root of family connection, persevered in looking on the emancipated children as strangers to the rights of Kinship and aliens from the blood.²

This grates against natural affection, so a further legal fiction was brought in: the will or testament. By this, the father could now emancipate his son and also give him an inheritance. By these two legal fictions, the ancient system of agnatic kinship was effectively undermined, and remained in name only. Now the father could even will the entire estate to his daughter.³

What is important to notice is that legal fictions served the purpose of obscuring that any substantial change had taken place at all. On paper, the Romans retained a patriarchal system. In practice, the system was whatever you wanted it to be. And yet despite this radical transformation, the ultra-conservative Roman was under the impression that nothing had really changed.

Over time tradition comes to be viewed as “outdated”, as mere encumbrance. You could be forgiven for thinking this is the sentiment of modern progressives, but consider that this change took place even before the Twelve Tables were cast, in the Roman prehistorical period. This process continues until at some point, the desire for “progress” becomes so powerful that fictions no longer suffice. Interference with tradition no longer need be carried on as a fiction, but can be open and avowed.

Equity

Archaic peoples are ultra-formalists. They know nothing of the spirit of the law, only the letter. If you go back far enough, the law is fixed in poetic meter, and considered holy and unchangeable, no less than scripture. These people have a distaste for innovation—at least of religious or moral innovation—that we find quite alien today. Hence the need for legal fictions, which maintain the letter of the law.

But at some point revolution becomes so endemic that something more is needed. The moral “progress” of society—or what is the same, the desires of an ambitious counter-elite—are carried so far that the law must bend. But at this point, society is still conservative enough that the law must not be altered, so it is overruled. This is what we call legal equity.