The Dynamics of Inclusion and Exclusion in Comparative Legal Thought
Chapter 3: Henry Maine and the legal foundations of liberal imperialism
This chapter analyses the works of Sir Henry Sumner Maine, who participated in the colonial administration of India from 1862 to 1869. It starts by outlining his evolutionary theoretical framework, based on a definition of Western ‘progressive societies’ in opposition to Eastern ‘stationary societies’. The chapter foregrounds the ways in which this construction produces a tension between inclusion and exclusion. Maine uses it both to criticize the alleged universality of liberal legal ideas and to re-affirm them within a universal understanding of societies as moving ‘from status to contract’. Moreover, while criticizing British policies for failing to recognize India’s particular form of social organization, he is also apologetic of British liberal reforms. It is argued that the critical potential of Maine’s work is considerably limited by a taken-for-granted notion of modernity paired with ideas about what constitutes a superior civilization.
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