Ancient Law by Henry Maine Chapter 2

Ancient Law
by Henry Maine

Chapter 2

Legal Fictions

    When primitive law has once been embodied in a Code, there is
an end to what may be called its spontaneous development.
Henceforward the changes effected in it, if effected at all, are
effected deliberately and from without. It is impossible to
suppose that the customs of any race or tribe remained unaltered
during the whole of the long -- in some instances the immense --
interval between their declaration by a patriarchal monarch and
their publication in writing. It would be unsafe too to affirm
that no part of the alteration was effected deliberately. But
from the little we know of the progress of law during this
period, we are justified in assuming that set purpose had the
very smallest share in producing change. Such innovations on the
earliest usages as disclose themselves appear to have been
dictated by feelings and modes of thought which, under our
present mental conditions, we are unable to comprehend. A new era
begins, however, with the Codes. Wherever, after this epoch, we
trace the course of legal modification we are able to attribute
it to the conscious desire of improvement, or at all events of
compassing objects other than those which were aimed at in the
primitive times.
    It may seem at first sight that no general propositions worth
trusting can be elicited from the history of legal systems
subsequent to the codes. The field is too vast. We cannot be sure
that we have included a sufficient number of phenomena in our
observations, or that we accurately understand those which we
have observed. But the undertaking will be seen to be more
feasible, if we consider that after the epoch of codes the
distinction between stationary and progressive societies begins
to make itself felt. It is only with the progressive that we are
concerned, and nothing is more remarkable than their extreme
fewness. In spite of overwhelming evidence, it is most difficult
for a citizen of western Europe to bring thoroughly home to
himself the truth that the civilisation which surrounds him is a
rare exception in the history of the world. The tone of thought
common among us, all our hopes, fears, and speculations, would be
materially affected, if we had vividly before us the relation of
the progressive races to the totality of human life. It is
indisputable that much the greatest part of mankind has never
shown a particle of desire that its civil institutions should be
improved since the moment when external completeness was first
given to them by their embodiment in some permanent record. One
set of usages has occasionally been violently overthrown and
superseded by another; here and there a primitive code,
pretending to a supernatural origin, has been greatly extended,
and distorted into the most surprising forms, by the perversity
of sacerdotal commentators; but, except in a small section of the
world, there has been nothing like the gradual amelioration of a
legal system. There has been material civilisation, but, instead
of the civilisation expanding the law, the law has limited the
civilisation. The study of races in their primitive condition
affords us some clue to the point at which the development of
certain societies has stopped. We can see that Brahminical India
has not passed beyond a stage which occurs in the history of all
the families of mankind, the stage at which a rule of law is not
yet discriminated from a rule of religion. The members of such a
society consider that the transgression of a religious ordinance
should be punished by civil penalties, and that the violation of
a civil duty exposes the delinquent to divine correction. In
China this point has been passed, but progress seems to have been
there arrested, because the civil laws are coextensive with all
the ideas of which the race is capable. The difference between
the stationary and progressive societies is, however, one of the
great secrets which inquiry has yet to penetrate. Among partial
explanations of it I venture to place the considerations urged at
the end of the last chapter. It may further be remarked that no
one is likely to succeed in the investigation who does not
clearly realise that the stationary condition of the human race
is the rule, the progressive the exception. And another
indispensable condition of success is an accurate knowledge of
Roman law in all its principal stages. The Roman jurisprudence
has the longest known history of any set of human institutions.
The character of all the changes which it underwent is tolerably
well ascertained. From its commencement to its close, it was
progressively modified for the better, or for what the author of
the modification conceived to be the better, and the course of
improvement was continued through periods at which all the rest
of human thought and action materially slackened its pace, and
repeatedly threatened to settle down into stagnation.
    I confine myself in what follows to the progressive
societies. With respect to them it may be laid down that social
necessities and social opinion are always more or less in advance
of Law. We may come indefinitely near to the closing of the gap
between them, but it has a perpetual tendency to reopen. Law is
stable; the societies we are speaking of are progressive. The
greater or less happiness of a people depends on the degree of
promptitude with which the gulf is narrowed.
    A general proposition of some value may be advanced with
respect to the agencies by which Law is brought into harmony with
society These instrumentalities seem to me to be three in number,
Legal Fictions, Equity, and Legislation. Their historical order
is that in which I have placed them. Sometimes two of them will
be seen operating together, and there are legal systems which
have escaped the influence of one or other of them. But I know of
no instance in which the order of their appearance has been
changed or inverted. The early history of one of them, Equity, is
universally obscure, and hence it may be thought by some that
certain isolated statutes, reformatory of the civil law, are
older than any equitable jurisdiction. My own belief is that
remedial Equity is everywhere older than remedial Legislation;
but, should this be not strictly true, it would only be necessary
to limit the proposition respecting their order of sequence to
the periods at which they exercise a sustained and substantial
influence in trans forming the original law.
    I employ the word "fiction" in a sense considerably wider
than that in which English lawyer are accustomed to use it, and
with a meaning much more extensive than that which belonged to
the Roman "fictiones." Fictio, in old Roman law, is properly a
term of pleading, and signifies a false averment on the part of
the plaintiff which the defendant was not allowed to traverse;
such, for example, as an averment that the plaintiff was a Roman
citizen, when in truth he was a foreigner. The object of these
"fictiones" was, of course, to give jurisdiction, and they
therefore strongly resembled the allegations in the writs of the
English Queen's Bench, and Exchequer, by which those Courts
contrived to usurp the jurisdiction of the Common Pleas: -- the
allegation that the defendant was in custody of the king's
marshal, or that the plaintiff was the king's debtor, and could
not pay his debt by reason of the defendant's default. But I now
employ the expression "Legal Fiction" to signify any assumption
which conceals, or affects to conceal, the fact that a rule of
law has undergone alteration, its letter remaining unchanged, its
operation being modified. The words, therefore, include the
instances of fictions which I have cited from the English and
Roman law, but they embrace much more, for I should speak both of
the English Case-law and of the Roman Responsa Prudentum as
resting on fictions. Both these examples will be examined
presently. The fact is in both cases that the law has been wholly
changed; the fiction is that it remains what it always was. It is
not difficult to understand why fictions in all their forms are
particularly congenial to the infancy of society. They satisfy
the desire for improvement, which is not quite wanting, at the
same time that they do not offend the superstitious disrelish for
change which is always present. At a particular stage of social
progress they are invaluable expedients for overcoming the
rigidity of law, and, indeed, without one of them, the Fiction of
Adoption which permits the family tie to be artificially created,
it is difficult to understand how society would ever have escaped
from its swaddling clothes, and taken its first steps towards
civilisation. We must, therefore, not suffer ourselves to be
affected by the ridicule which Bentham pours on legal fictions
wherever he meets them. To revile them as merely fraudulent is to
betray ignorance of their peculiar office in the historical
development of law. But at the same time it would be equally
foolish to agree with those theorists, who, discerning that
fictions have had their uses, argue that they ought to be
stereotyped in our system. They have had their day, but it has
long since gone by. It is unworthy of us to effect an admittedly
beneficial object by so rude a device as a legal fiction. I
cannot admit any anomaly to be innocent, which makes the law
either more difficult to understand or harder to arrange in
harmonious order. Now legal fictions are the greatest of
obstacles to symmetrical classification. The rule of law remains
sticking in the system, but it is a mere shell. It has been long
ago undermined, and a new rule hides itself under its cover.
Hence there is at once a difficulty in knowing whether the rule
which is actually operative should be classed in its true or in
its apparent place, and minds of different casts will differ as
to the branch of the alternative which ought to be selected. If
the English law is ever to assume an orderly distribution, it
will be necessary to prune away the legal fictions which, in
spite of some recent legislative improvements, are still abundant
in it.
    The next instrumentality by which the adaptation of law to
social wants is carried on I call Equity, meaning by that word
any body of rules existing by the side of the original civil law,
founded on distinct principles and claiming incidentally to
supersede the civil law in virtue of a superior sanctity inherent
in those principles. The Equity whether of the Roman Praetors or
of the English Chancellors, differs from the Fictions which in
each case preceded it, in that the interference with law is open
and avowed. On the other hand, it differs from Legislation, the
agent of legal improvement which comes after it, in that its
claim to authority is grounded, not on the prerogative of any
external person or body, not even on that of the magistrate who
enunciates it, but on the special nature of its principles, to
which it is alleged that all law ought to conform. The very
conception of a set of principles, invested with a higher
sacredness than those of the original law and demanding
application independently of the consent of any external body
belongs to a much more advanced stage of thought than that to
which legal fictions originally suggested themselves.
    Legislation, the enactments of a legislature which, whether
it take the form of an autocratic prince or of a parliamentary
assembly, is the assumed organ of the entire society, is the last
of the ameliorating instrumentalities. It differs from Legal
Fictions just as Equity differs from them, and it is also
distinguished from Equity, as deriving its authority from an
external body or person. Its obligatory force is independent of
its principles. The legislature, whatever be the actual
restraints imposed on it by public opinion, is in theory
empowered to impose what obligations it pleases on the members of
the community. There is nothing to prevent its legislating in the
wantonness of caprice. Legislation may be dictated by equity, if
that last word be used to indicate some standard of right and
wrong to which its enactments happen to be adjusted; but then
these enactments are indebted for their binding force to the
authority of the legislature and not to that of the principles on
which the legislature acted; and thus they differ from rules of
Equity, in the technical sense of the word, which pretend to a
paramount sacredness entitling them at once to the recognition of
the courts even without the concurrence of prince or
parliamentary assembly. It is the more necessary to note these
differences, because a student of Bentham would be apt to
confound Fictions, Equity, and Statute law under the single head
of legislation. They all, he would say, involve law-making; they
differ only in respect of the machinery by which the new law is
produced. That is perfectly true, and we must never forget it;
but it furnishes no reason why we should deprive ourselves of so
convenient a term as Legislation in the special sense.
Legislation and Equity are disjoined in the popular mind and in
the minds of most lawyers; and it will never do to neglect the
distinction between them, however conventional, when important
practical consequences follow from it.
    It would be easy to select from almost any regularly
developed body of rules examples of legal fictions, which at once
betray their true character to the modern observer. In the two
instances which I proceed to consider, the nature of the
expedient employed is not so readily detected. The first authors
of these fictions did not perhaps intend to innovate, certainly
did not wish to be suspected of innovating. There are, moreover,
and always have been, persons who refuse to see any fiction in
the process, and conventional language bear out their refusal. No
examples, therefore, can be better calculated to illustrate the
wide diffusion of legal fictions, and the efficiency with which
they perform their two-fold office of transforming a system of
laws and of concealing the transformation.
    We in England are well accustomed to the extension,
modification, and improvement of law by a machinery which, in
theory, is incapable of altering one jot or one line of existing
jurisprudence. The process by which this virtual legislation is
effected is not so much insensible as unacknowledged. With
respect to that great portion of our legal system which is
enshrined in cases and recorded in law reports, we habitually
employ a double language and entertain, as it would appear, a
double and inconsistent set of ideas. When a group of facts come
before an English Court for adjudication, the whole course of the
discussion between the judge and the advocate assumes that no
question is, or can be, raised which will call for the
application of any principles but old ones, or any distinctions
but such as have long since been allowed. It is taken absolutely
for granted that there is somewhere a rule of known law which
will cover the facts of the dispute now litigated, and that, if
such a rule be not discovered, it is only that the necessary
patience, knowledge, or acumen is not forthcoming to detect it.
Yet the moment the judgment has been rendered and reported, we
slide unconsciously or unavowedly into a new language and a new
train of thought. We now admit that the new decision has modified
the law. The rules applicable have, to use the very inaccurate
expression sometimes employed, become more elastic. In fact they
have been changed. A clear addition has been made to the
precedents, and the canon of law elicited by comparing the
precedents is not the same with that which would have been
obtained if the series of cases had been curtailed by a single
example. The fact that the old rule has been repealed, and that a
new one has replaced it, eludes us, because we are not in the
habit of throwing into precise language the legal formulas which
we derive from the precedents, so that a change in their tenor is
not easily detected unless it is violent and glaring. I shall not
now pause to consider at length the causes which have led English
lawyers to acquiesce in these curious anomalies. Probably it will
be found that originally it was the received doctrine that
somewhere, in nubibus or in gremio magistratuum, there existed a
complete, coherent, symmetrical body of English law, of an
amplitude sufficient to furnish principles which would apply to
any conceivable combination of circumstances. The theory was at
first much more thoroughly believed in than it is now, and indeed
it may have had a better foundation. The judges of the thirteenth
century may have really had at their command a mine of law
unrevealed to the bar and to the lay-public, for there is some
reason for suspecting that in secret they borrowed freely, though
not always wisely, from current compendia of the Roman and Canon
laws. But that storehouse was closed so soon as the points
decided at Westminster Hall became numerous enough to supply a
basis for a substantive system of jurisprudence; and now for
centuries English practitioner have so expressed themselves as to
convey the paradoxical proposition that, except by Equity and
Statute law, nothing has been added to the basis since it was
first constituted. We do not admit that our tribunals legislate;
we imply that they have never legislated; and yet we maintain
that the rules of the English common law, with some assistance
from the Court of Chancery and from Parliament, are coextensive
with the complicated interests of modern society.
    A body of law bearing a very close and very instructive
resemblance to our case-law in those particulars which I have
noticed, was known to the Romans under the name of the Responsa
Prudentum, the "answers of the learned in the law." The form of
these Responses varied a good deal at different periods of the
Roman jurisprudence, but throughout its whole course they
consisted of explanatory glosses on authoritative written
documents, and at first they were exclusively collections of
opinions interpretative of the Twelve Tables. As with us, all
legal language adjusted itself to the assumption that the text of
the old Code remained unchanged. There was the express rule. It
overrode all glosses and comments, and no one openly admitted
that any interpretation of it, however eminent the interpreter,
was safe from revision on appeal to the venerable texts. Yet in
point of fact, Books of Responses bearing the names of leading
jurisconsults obtained an authority at least equal to that of our
reported cases, and constantly modified, extended, limited or
practically overruled the provisions of the Decemviral law. The
authors of the new jurisprudence during the whole progress of its
formation professed the most sedulous respect for the letter of
the Code. They were merely explaining it, deciphering it,
bringing out its full meaning; but then, in the result, by
piecing texts together, by adjusting the law to states of fact
which actually presented themselves and by speculating on its
possible application to others which might occur, by introducing
principles of interpretation derived from the exegesis of other
written documents which fell under their observation, they educed
a vast variety of canons which had never been dreamed of by the
compilers of the Twelve Tables and which were in truth rarely or
never to be found there. All these treatises of the jurisconsults
claimed respect on the ground of their assumed conformity with
the Code, but their comparative authority depended on the
reputation of the particular jurisconsults who gave them to the
world. Any name of universally acknowledged greatness clothed a
Book of responses with a binding force hardly less than that
which belonged to enactments of the legislature; and such a book
in its turn constituted a new foundation on which a further body
of jurisprudence might rest. The responses of the early lawyers
were not however published, in the modern sense, by their author.
They were recorded and edited by his pupils, and were not
therefore in all probability arranged according to any scheme of
classification. The part of the students in these publications
must be carefully noted, because the service they rendered to
their teacher seems to have been generally repaid by his sedulous
attention to the pupils' education. The educational treatises
called Institutes or Commentaries, which are a later fruit of the
duty then recognised, are among the most remarkable features of
the Roman system. It was apparently in these Institutional works,
and not in the books intended for trained lawyers, that the
jurisconsults gave to the public their classifications and their
proposals for modifying and improving the technical phraseology.
    In comparing the Roman Responsa Prudentum with their nearest
English counterpart, it must be carefully borne in mind that the
authority by which this part of the Roman jurisprudence was
expounded was not the bench, but the bar. The decision of a Roman
tribunal, though conclusive in the particular case, had no
ulterior authority except such as was given by the professional
repute of the magistrate who happened to be in office for the
time. Properly speaking, there was no institution at Rome during
the republic analogous to the English Bench, the Chambers of
imperial Germany, or the Parliaments of Monarchical France. There
were magistrates indeed, invested with momentous judicial
functions in their several departments, but the tenure of the
magistracies was but for a single year, so that they are much
less aptly compared to a permanent judicature than to a cycle of
offices briskly circulating among the leaders of the bar. Much
might be said on the origin of a condition of things which looks
to us like a startling anomaly, but which was in fact much more
congenial than our own system to the spirit of ancient societies,
tending, as they always did, to split into distinct orders which,
however exclusive themselves, tolerated no professional hierarchy
above them.
    It is remarkable that this system did not produce certain
effects which might on the whole have been expected from it. It
did not, for example, popularise the Roman law -- it did not, as
in some of the Greek republics, lessen the effort of intellect
required for the mastery of the science, although its diffusion
and authoritative exposition were opposed by no artificial
barriers. On the contrary, if it had not been for the operation
of a separate set of causes, there were strong probabilities that
the Roman jurisprudence would have become as minute, technical,
and difficult as any system which has since prevailed. Again, a
consequence which might still more naturally have been looked
for, does not appear at any time to have exhibited itself. The
jurisconsults, until the liberties of Rome were overthrown,
formed a class which was quite undefined and must have fluctuated
greatly in numbers; nevertheless, there does not seem to have
existed a doubt as to the particular individuals whose opinion,
in their generation, was conclusive on the cases submitted to
them. The vivid pictures of a leading jurisconsult's daily
practice which abound in Latin literature -- the clients from the
country flocking to his antechamber in the early morning, and the
students standing round with their note-books to record the great
lawyer's replies -- are seldom or never identified at any given
period with more than one or two conspicuous names. Owing too to
the direct contact of the client and the advocate, the Roman
people itself seems to have been always alive to the rise and
fall of professional reputation, and there is abundance of proof,
more particularly in the well-known oration of Cicero, Pro
Muraena, that the reverence of the commons for forensic success
was apt to be excessive rather than deficient.
    We cannot doubt that the peculiarities which have been noted
in the instrumentality by which the development of the Roman law
was first effected, were the source of its characteristic
excellence, its early wealth in principles. The growth and
exuberance of principle was fostered, in part, by the competition
among the expositors of the law, an influence wholly unknown
where there exists a Bench, the depositaries intrusted by king or
commonwealth with the prerogative of justice. But the chief
agency, no doubt, was the uncontrolled multiplication of cases
for legal decision. The state of facts which caused genuine
perplexity to a country client was not a whit more entitled to
form the basis of the jurisconsult's Response, or legal decision,
than a set of hypothetical circumstances propounded by an
ingenious pupil. All combinations of fact were on precisely the
same footing, whether they were real or imaginary. It was nothing
to the jurisconsult that his opinion was overruled for the moment
by the magistrate who adjudicated on his client's case, unless
that magistrate happened to rank above him in legal knowledge or
the esteem of his profession. I do not, indeed, mean it to be
inferred that he would wholly omit to consider his client's
advantage, for the client was in earlier times the great lawyer's
constituent and at a later period his paymaster, but the main
road to the rewards of ambition lay through the good opinion of
his order, and it is obvious that under such a system as I have
been describing this was much more likely to be secured by
viewing each case as an illustration of a great principle, or an
exemplification of a broad rule, than by merely shaping it for an
insulated forensic triumph. A still more powerful influence must
have been exercised by the want of any distinct check on the
suggestion or invention of possible questions. Where the data can
be multiplied at pleasure, the facilities for evolving a general
rule are immensely increased. As the law is administered among
ourselves, the judge cannot travel out of the sets of facts
exhibited before him or before his predecessors. Accordingly each
group of circumstances which is adjudicated upon receives, to
employ a Gallicism, a sort of consecration. It acquires certain
qualities which distinguish it from every other case genuine or
hypothetical. But at Rome, as I have attempted to explain, there
was nothing resembling a Bench or Chamber of judges; and
therefore no combination of facts possessed any particular value
more than another. When a difficulty came for opinion before the
jurisconsult, there was nothing to prevent a person endowed with
a nice perception of analogy from at once proceeding to adduce
and consider an entire class of supposed questions with which a
particular feature connected it. Whatever were the practical
advice given to the client, the responsum treasured up in the
notebooks of listening pupils would doubtless contemplate the
circumstances as governed by a great principle, or included in a
sweeping rule. Nothing like this has ever been possible among
ourselves, and it should be acknowledged that in many criticisms
passed on the English law the manner in which it has been
enunciated seems to have been lost sight of. The hesitation of
our courts in declaring principles may be much more reasonably
attributed to the comparative scantiness of our precedents,
voluminous as they appear to him who is acquainted with no other
system, than to the temper of our judges. It is true that in the
wealth of legal principle we are considerably poorer than several
modern European nations. But they, it must be remembered, took
the Roman jurisprudence for the foundation of their civil
institutions. They built the debris of the Roman law into their
walls; but in the materials and workmanship of the residue there
is not much which distinguishes it favourably from the structure
erected by the English judicature.
    The period of Roman freedom was the period during which the
stamp of a distinctive character was impressed on the Roman
jurisprudence; and through all the earlier part of it, it was by
the Responses of the jurisconsults that the development of the
law was mainly carried on. But as we approach the fall of the
republic there are signs that the Responses are assuming a form
which must have been fatal to their farther expansion. They are
becoming systematised and reduced into compendia. Q. Mucius
Scaevola, the Pontifex, is said to have published a manual of the
entire Civil Law, and there are traces in the writings of Cicero
of growing disrelish for the old methods, as compared with the
more active instruments of legal innovation. Other agencies had
in fact by this time been brought to bear on the law. The Edict,
or annual proclamation of the Praetor, had risen into credit as
the principal engine of law reform, and L. Cornelius Sylla, by
causing to be enacted the great group of statutes called the
Leges Corneliae, had shown what rapid and speedy improvements can
be effected by direct legislation. The final blow to the
Responses was dealt by Augustus, who limited to a few leading
jurisconsults the right of giving binding opinions on cases
submitted to them, a change which, though it brings us nearer the
ideas of the modern world, must obviously have altered
fundamentally the characteristics of the legal profession and the
nature of its influence on Roman law. At a later period another
school of jurisconsults arose, the great lights of jurisprudence
for all time. But Ulpian and Paulus, Gaius and Papinian, were not
authors of Responses. Their works were regular treatises on
particular departments of the law, more especially on the
Praetor's Edict.
    The Equity of the Romans and the Praetorian Edict by which it
was worked into their system, will be considered in the next
chapter. Of the Statute Law it is only necessary to say that it
was scanty during the republic, but became very voluminous under
the empire. In the youth and infancy of a nation it is a rare
thing for the legislature to be called into action for the
general reform of private law. The cry of the people is not for
change in the laws, which are usually valued above their real
worth, but solely for their pure, complete, and easy
administration; and recourse to the legislative body is generally
directed to the removal of some great abuse, or the decision of
some incurable quarrel between classes and dynasties. There seems
in the minds of the Romans to have been some association between
the enactment of a large body of statutes and the settlement of
society after a great civil commotion. Sylla signalised his
reconstitution of the republic by the Leges Corneliae; Julius
Caesar contemplated vast additions to the Statute Law. Augustus
caused to be passed the all-important group of Leges Juliae; and
among later emperors the most active promulgators of
constitutions are princes who, like Constantine, have the
concerns of the world to readjust. The true period of Roman
Statute Law does not begin till the establishment of the empire.
The enactments of the emperors, clothed at first in the pretence
of popular sanction, but afterwards emanating undisguisedly from
the imperial prerogative, extend in increasing massiveness from
the consolidation of Augustus's power to the publication of the
Code of Justinian. It will be seen that even in the reign of the
second emperor a considerable approximation is made to that
condition of the law and that mode of administering it with which
we are all familiar. A statute law and a limited board of
expositors have risen into being; a permanent court of appeal and
a collection of approved commentaries will very shortly be added;
and thus we are brought close on the ideas of our own day.