Henry S. Maine: History and Antiquity in Law

The oeuvre of Henry Sumner Maine (1822–1888) would seem a perfect fit for this special issue; or, one might better say, this issue of Nepantla accords with Maine's oeuvre, itself a manifestation of that colonial present in which an English scholar of law and the social institutions visible in juridical texts clarified the European past, stimulated by the discoveries and descriptions of travelers, by the explanations of historians, and above all by his own experience in India.

Maine's work continues to be valued, primarily by anthropologists working on social change; but in the Spanish-speaking world he is underappreciated. And this despite the publication, by Mexico City's Editorial Extemporáneos, of El derecho antiguo (1980), a new translation of Maine's first, most famous book, Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas (1861), and despite the 1986 publication in Spanish of Paolo Grossi's splendid Un altro modo di possedere: L'emersione di forme alternative di proprietà alla coscienza giuridica postunitaria (1977), translated by Juana Bignozzi and published by Barcelona's Editorial Ariel under the title Historia del derecho de propiedad: La irrupción del colectivismo en la consciencia europea.¹ (Grossi's book, a clear appreciation of the significance of Maine's work in the context of European ideology, and particularly European historiography, goes beyond the juridical issue announced by its title, reason enough for me to recommend it without hesitation.)

I will limit myself here to considering one of Maine's books that appeared in Spanish like a ghost, conjured up out of a business and publishing opportunity, under a title quite different from the English original and with no name of translator or year of publication. The English original was Maine's second important book, Village-Communities in the East and West (1889 [1871]), which he first published in 1871 and based on the Lectures in Comparative Jurisprudence that he had given at Oxford University the previous year. Like El derecho antiguo, the new volume was very successful, with expanded editions (amplified by other Maine works) published in 1876 and 1889. España Moderna released the main part of this book in an edition titled Historia del derecho (Maine n.d. 1), which deleted some of the later works and added others that the author had included in different volumes. The translation was doubtless published in this way to take advantage of the interest it would arouse in among Spanish-speaking readers who were familiar with Maine's work, or at least with two books whose titles the Madrid edition's own title tried to approximate, completely disfiguring the original. The first of those two works is the 1861 Ancient Law already mentioned, which was published in Spanish in 1893 in two volumes with the full title El derecho antiguo, considerado en sus relaciones con la historia de la sociedad primitiva y con las ideas modernas, the translation having been done from a French version apparently authorized by Maine. The second was El antiguo derecho y la costumbre primitiva (Maine n.d. 2), which España Moderna released, again without indicating a translator's name or year of publication. With similar omissions, this house published a posthumous book by Maine, La guerra según el derecho internacional (n.d. 3), compiled from the last lectures he gave at Cambridge University in 1887.

Surely other works by Maine were translated into Spanish. The leading Spanish scholars of legal history, comparative legislation, political law, and other disciplines that required historical reflection frequently cited Maine and appeared to be familiar with his work (see, for example, the prologue by Gumersindo de Azcárate in Maine 1893a). In Mexico one finds references to Maine in the work of historians and jurists such as Justo Sierra (1848–1912) and Jacinto Pallares (1845–1904), and I have seen old copies of Maine's...