THE COMPARATIVE STUDY OF PRIMITIVE LAW - Delivered as the Hobhouse Memorial Lecture

Sep 21, 2026

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A comparative study lecture reflecting on a century of scholarship in primitive law, framed by the Hobhouse Memorial Lecture and the earlier classics of legal anthropology. It contrasts modern shortcomings—scanty materials supplemented by conjecture—with the pioneering but often erroneous universal-stage approach of Maine’s Ancient Law. The lecture highlights why Maine’s influence persisted, then turns to the statistical, institution-focused comparative method of Hobhouse, Wheeler, and Ginsberg’s study of simpler peoples.

LanguageEnglish

CategoryResearch & Report

FormatPDF

Pages32

Reading Time1 h 21 min

AccessFree to download

THE COMPARATIVE STUDY OF PRIMITIVE LAW

Context and centenary framing

Critique of earlier classics and universal-stage history

Influence of Maine’s Ancient Law

Hobhouse, Wheeler and Ginsberg: statistical comparison of institutions

GN 493 .D53 # THE COMPARATIVESTUDY OFPRIMITIVE LAW“l by“CNA.S.DIAMOND493LL.D.53” Delivered on 4 MAY I965at King's College,London Thomas J.Bata LibraryTRENT UNIVERSITYPETERBOROUCH,ONTARi UNIVERSITY OF LONDONTHE ATHLONE PRESSI965 Published byTHE ATHLONE PRESSUNIVERSITY OF LONDONat 2 Gower Street London wCIDistributed by Constable Co LtdI2 Orange Street London wc2 Canada Oaxford University PressToronto U.S.A. Oxford University Press IncNew York ⑥London School of Economics,I965 G493D5 ONULP, # THE COMPARATIVE STUDYOF PRIMITIVE LAW 个HIs year,the year in which you do me the honour of in-I viting me to deliver the Hobhouse Memorial Lecture,marks the passage of a century from the appearance of thefirst classics of the social anthropologist—Maine's AncientLa(186I),Bachofen's Das Mutterrecht(I86I),Fustel deCoulange's La Cité Antique(I864),McLennan’s PrimitiveMarriage(1865),Tylor's Researches into the Early History ofMankind(1865)—all,except the last,the works of lawyers.Theirauthors were men of powerfulintellect,originalthoughtand wide learning,and though they had certain predecessors(such as Klemm and Bastian)their books marked a departurefrom the speculations on the history of society by the moralphilosophers of the previous two centuries,for,taken to-gether,they first embodied the idea that primitive societieswere a worthy subject of study,if only for the sake of the lightthey might throw on the development of our own civilization.But alas,the century since 1865 is a long century,and todaywe can see that their materials were scanty and eked out by apriori reasoning and conjecture,and though they founded adisciplineandleft muchof permanent value,theirgenerallawsof the history of societies were often erroneous and baseless. The first of these works,Maine's Ancient Law was in somerespects the most remarkable of them all.He makes no refer-ence to contemporary primitive societies.He constructs aseries of stages in a universal history of the development oflaw,based on passages of legal history among a few peoplesspeaking Indo-European languages and mainly the Romanand the English.Rarely does he give a reference for any of hisstatements and the nature of the documents to which he doesrefer he often misunderstands.And with the possible excep- 60953 # THE COMPARATIVE STUDY tion of his dictum that the movement of the progressive soci-eties has been a movement from status to contract,none of thestages of his history have been found.The famous dicta in thefirst three chapters of Ancient Lao—that the ancient Codesinvariably mingle religious,civil and moral ordinances with-out any regard for their different characters;that law firstconsists of themistes or judgments of kings,which give rise tocustoms and so customary law;that oligarchies follow whichproduce Codes of law,i.e.of existing custom,and the lawsubsequently changes by fictions,then equity and finally bylegislation;and that throughout early law is characterized bya love of technicalities and formalism and an insistence onprocedure rather than substance—all this is erroneous andbaseless.Yet the appeal of the work has been unique.Hisviews were wholly congenial to the lawyers of his day and thefirst three editions appeared within four years.He broughtnew life into the study of Roman law and inspired in lawyersgenerally(including your present lecturer)an abiding interestin the historical beginnings of law;and he founded an Englishschool of historical jurisprudence even if few or none havefollowed in his steps.The famous dicta are slow to die awayand the resonant periods of his magnificent prose are stilechoed with reverence by a lawyer or a professor of socialanthropology. This year of 1965 also marks the passage of half a centurysince the publication in I9I5 of Hobhouse,Wheeler andGinsberg's remarkable work The Material Culture and SocialInstitutions of the Simpler Peoples,the second of the twoworks that have chiefly influenced me in this field.This i

FAQs

What century milestone does the lecture mark?

It marks the passage of a century from the appearance of the first classics of legal and social anthropology in 1865.

What is the main criticism of Maine’s Ancient Law discussed here?

The lecture argues that Maine’s stages were based on scant materials, often lacked references, and included stages and dicta that have not been found, making them erroneous and baseless.

How does the lecture characterize the method of Hobhouse, Wheeler and Ginsberg’s work?

It describes it as a comparative study using the statistical method to examine changes of institutions accompanying social evolution and the growth of civilization.

Sep 21, 2026

Uploaded by Eden