Maine - Romanization PDF

Robert Louis Stevenson, Henry Maine, and the Anthropology of Comparative Law
Author(s): Roslyn Jolly

Source: Journal of British Studies, Vol. 45, No. 3 (July 2006), pp. 556-580
Published by: Cambridge University Press on behalf of The North American Conference
on British Studies
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Robert Louis Stevenson, Henry Maine, and the
Anthropology of Comparative Law
Roslyn Jolly
I n July 1888, at the end of his first day visiting a Pacific island, Robert Louis
Stevenson sat on board the yacht Casco, writing up his journal under the
gaze of a crowd of silent Marquesans: “A kind of despair came over me, to
sit there helpless under all these staring orbs, and be thus blocked in a corner of
my cabin by this speechless crowd: and a kind of rage to think they were beyond
the reach of articulate communication, like furred animals, or folk born deaf, or
the dwellers of some alien planet.”1 Yet despair was balanced by excitement at
entering a new world: “But I was now escaped out of the shadow of the Roman
empire, under whose toppling monuments we were all cradled, whose laws and
letters are on every hand of us, constraining and preventing. I was now to see
what men might be whose fathers had never studied Virgil, had never been con-
quered by Caesar, and never been ruled by the wisdom of Gaius or Papinian.”2
The verbs “blocked” and “escaped” focus the contrasting feelings of entrapment
and liberation, frustration and elation, that Stevenson expresses in these two par-
agraphs. The crush of Polynesian bodies, physically trapping him in the enclosed
space of the cabin, is matched by the mentally “constraining and preventing” force
of Roman civilization, and Stevenson’s sense of being simultaneously confined by
the first and released from the second gives the scene its particular energy and
tension.
This scene of first contact announces Stevenson’s anthropological project: to
discover “what men might be” who had never been subjected to the influence of
the Roman Empire.3 In both his travel book, In the South Seas (1896), and his
Roslyn Jolly is a Senior Lecturer in the School of English at the University of New South Wales. She
would like to express her gratitude to Dr. Simon Petch of the University of Sydney, who first introduced
her to the work of Henry Sumner Maine, and who inspired her interest in Victorian legal thought.
1
Robert Louis Stevenson, In the South Seas, ed. Neil Rennie (1896; London, 1998), 9.
2
Ibid.
3
On the problems caused for himself and his readers by Stevenson’s attempt to produce an anthro-
pological work within the form of a personal travel narrative, see Rennie, “Introduction,” in ibid.,
Journal of British Studies 45 (July 2006): 556–580

䉷 2006 by The North American Conference on British Studies.
All rights reserved. 0021-9371/2006/4503-0004$10.00
556
STEVENSON, MAINE, AND COMPARATIVE LAW 䡵 557
study of Samoan politics, A Footnote to History (1892), Stevenson frequently or-

ganized his investigations into Pacific societies around a comparison of Roman
and non-Roman cultures, focusing particularly on the topic of law. In this, his
anthropological practice resembled the method of comparative jurisprudence de-
veloped by the nineteenth-century British jurist Henry Sumner Maine. Having
encountered Maine’s work in his student days, Stevenson later devised his own
style of anthropological inquiry through the comparison of legal cultures, which
paralleled Maine’s approach in using Roman law as its main point of reference but
diverged from Maine in offering more challenges to the racial hierarchies of Vic-
torian progressivist thought.
Maine’s and Stevenson’s concerns with law were not typical of Victorian an-
thropology, which tended to focus on religion, myth, and folklore. Julia Reid has
shown how the comparative study of religions in the “founding text” of Victorian
anthropology, E. B. Tylor’s Primitive Culture (1871), influenced Stevenson’s early
anthropological interests, and how, during his Pacific years, Stevenson engaged
with his friend Andrew Lang’s Tylorian analyses of myths and folktales.4 These
interests fed into Stevenson’s fiction and poetry, particularly Ballads (1890). How-
ever, his Pacific nonfiction displays a legal orientation that does not derive from
Tylor but has much in common with Maine’s approach to ancient and primitive
societies. Like Maine, and like no other British anthropological writer until that
time, Stevenson believed that one could best understand a society by understanding
its laws, or, more important, its “jural conceptions”—that is, the particular ways
of thinking about obligations, rights, and authority that defined relations between
members or units of a society.5 For both Stevenson and Maine, legal ideas and
institutions unlocked cultures and mentalities. A comparison of the two writers
illuminates a particular aspect of Victorian anthropology, which lay outside the
mainstream of contemporary anthropological thinking, but whose significance
would become apparent with the development of social and legal anthropology
in the twentieth century.6
I. ROMAN LAW AND ANTHROPOLOGICAL INQUIRY
Stevenson’s account of his arrival in the Marquesas is one of many instances in

his work where Pacific travel is presented as a movement beyond the boundaries
of the Roman Empire. In The Wrecker (1889), Loudon Dodd watches schooners
from the Pacific islands enter San Francisco harbor, visitors from “another world”
he has yet to enter: “I stood there on the extreme shore of the West and of to-
day. Seventeen hundred years ago, and seven thousand miles to the east, a legionary
stood, perhaps, upon the wall of Antoninus, and looked northward toward the
xx–xxxi. Julia Reid shows how Stevenson’s interest in anthropology informed his early Scottish as well
as his late Pacific writings; she shows him to be “an illuminating figure for the history of the discipline
[of anthropology], exemplifying the intertwined nature of anthropology and creative literature at the
fin de siècle” (“Robert Louis Stevenson and the ‘Romance of Anthropology,’” Journal of Victorian
Culture 10, no. 1 [2005]: 47).
4
Reid, “Robert Louis Stevenson and the ‘Romance of Anthropology,’” 47–49, 55.
5
Henry Sumner Maine, Ancient Law (1861; repr., New York, 1986), 2.
6
The increasing concern with primitive law in twentieth-century anthropology was exemplified in
the debates between Bronislaw Malinowski and A. R. Radcliffe-Brown in the 1930s. See George W.
Stocking Jr., After Tylor: British Social Anthropology, 1888–1951 (London, 1996), 361–62.
558 䡵 JOLLY
mountains of the Picts. For all the interval of time and space I, when I looked
from the cliff-house on the broad Pacific, was that man’s heir and analogue: each
of us standing on the verge of the Roman Empire (or, as we now call it, Western
civilisation), each of us gazing onward into zones unromanised.”7 The concept of
Romanization was developed in the late nineteenth century by the German his-
torian Theodor Mommsen, who described the spread of Roman culture through
the Empire, and by the British archaeologist Francis Haverfield, who theorized a
process of reception and assimilation whereby provincials were transformed into
Romans.8 Mommsen and Haverfield were largely concerned with the adoption of
Roman material culture and the political legacies of Roman conquest. In contrast,
Stevenson was more interested in the mental legacies of the Roman Empire. He
believed that Roman ways of thought had determined the characteristic qualities
of the Western mind, with both enabling and disabling effects. When his Tahitian
poem “The Song of Rahéro” was poorly received in England in 1891, he claimed
this was because “the average man at home cannot understand antiquity; he is
sunk over the ears in Roman civilisation; and a tale like that of ‘Rahéro’ falls on
his ears inarticulate.” In this formulation, Stevenson’s English readers had become
what the Marquesans had seemed to him in 1888, “folk born deaf.” They could
not hear what the poem was saying to them, because they were unable to un-
derstand “savage psychology,” so different from the modern psychology shaped
by Roman civilization.9
It is well known that Stevenson used a “Highland comparison” to help him
understand and communicate with the Pacific islanders he met on his travels.10
No less important was the Roman comparison he used to help readers at home
appreciate the difference of Pacific cultures. Both the Highland and the Roman
comparisons derived from Stevenson’s position as a Scot with, as it were, one foot
on either side of the “Roman Wall” that marked the frontier of Roman civiliza-
tion.11 In Stevenson’s writing on Rome there is always the sense of a boundary,
which expresses itself in a thoroughgoing cultural relativism. What we call “human
nature,” he argued, is merely a product or effect of “the Roman Empire, since
the Romans founded it and made our European human nature what it is.”12 The
same “human nature” might not exist in the “zones unromanised,” for Western
culture and subjectivity were the products of a particular time and place. He told
a newspaper interviewer in Auckland in 1893, “You must remember that we are
only the decayed fragments of the Roman Empire, from which we derive all that
7
Robert Louis Stevenson and Lloyd Osbourne, The Wrecker (1892; repr., New York, 1982), 124–25.
8
Mommsen’s The Provinces of the Roman Empire was published in German in 1885 and translated
into English in 1886. Haverfield’s The Romanization of Roman Britain (Oxford, 1912) developed a
thesis first presented to the British Academy in 1905. Richard Hingley notes that the term “Roman-
ization” was little used by English writers before Haverfield, although several explored the concept;
see his Roman Officers and English Gentlemen: The Imperial Origins of Roman Archaeology (London,
2000), 90.
9
Robert Louis Stevenson, The Letters of Robert Louis Stevenson, ed. Bradford Booth and Ernest
Mehew (New Haven, CT, 1994–95), 7:187.
10
Stevenson, In the South Seas, 14.
11
See Roslyn Jolly, “Robert Louis Stevenson and Samoan History: Crossing the Roman Wall,” in
Crossing Cultures: Essays on Literature and Culture of the Asia-Pacific, ed. Bruce Bennett, Jeff Doyle,
and Satendra Nandan (London, 1996), 113–20.
12
Stevenson, Letters, 7:374.
we value ourselves upon, and I believe that we can never be so well employed as
in endeavouring to understand as well as we can the original meaning of that
system of things in whose ruins we live.”13 Stevenson seems very close here to
Michel Foucault’s concept of the “episteme” as a bounded system of knowledge
and ideas creating horizons of thought, feeling, and belief.14
Standing on the threshold of “that system of things” in the Marquesas, he
thought of it primarily in terms of law and government. Of the four figures used
to metonymize Roman civilization in the first chapter of In the South Seas, one
(Virgil) was a poet, one (Caesar) was an imperial ruler, and two (Gaius and Pap-
inian) were jurists. It is perhaps surprising that Stevenson, a writer, included only
one literary figure in this list, but the emphasis on Rome’s political and legal legacy
bears out a comment by his biographer, Graham Balfour, that “as an influence,
Rome counted to him as something very much more than a literature—a whole
system of law and empire.”15 Confirmation of his belief that Roman law had shaped
modern Western society was close at hand in Edward Gibbon’s Decline and Fall of
the Roman Empire, which the Stevenson party was reading on the Casco.16 In chapter
44, titled “Idea of the Roman Jurisprudence,” Gibbon asserted that “the public
reason of the Romans has been silently or studiously transfused into the domestic
institutions of Europe.”17 Gibbon’s idea that “public” and “domestic” realms were
linked through the shaping agency of Roman law is echoed in Stevenson’s image
of the Western subject “cradled” under Rome’s “toppling monuments.”
Gibbon was a stimulus in 1888–89, but Stevenson’s interest in Roman law went
back to the days of his legal studies at Edinburgh University between November
1871 and July 1875. The Scots law he studied was more closely affiliated with
Roman (Civil) law than with English (Common) law.18 As Lord Mackenzie wrote
in his Studies in Roman Law, “In Scotland a knowledge of the Roman law has
always been regarded as the best introduction to the study of the municipal law.
No person can be admitted a member of the Faculty of Advocates without un-
dergoing an examination in both laws.”19 In 1874, Stevenson decided to attend
a course of lectures by the international Roman Law specialist, Rudolf von Jhering,
13
“Mr. R. L. Stevenson on Reading and Literature: An Interview,” The Argus (Melbourne), 6 May
1893. A different version of this interview had been published in The Press (Christchurch), 24 April
1893; it also contains the comment about the Roman Empire.
14
See Michel Foucault, The Order of Things: An Archaeology of the Human Sciences (London, 1970).
15
Graham Balfour, The Life of Robert Louis Stevenson (London, 1901), 2:102.
16
M. I. Stevenson, From Saranac to the Marquesas and Beyond, ed. Marie Clothilde Balfour (London,
1903), 71. In the Gilbert Islands in 1889, Stevenson was still, or again, reading Gibbon. See Stevenson,
In the South Seas, 221.
17
Edward Gibbon, The Decline and Fall of the Roman Empire, introduction by Christopher Dawson
(1776–88; London, 1969), 4:374–75.
18
Peter Stein argues that “the Roman notions which were introduced into Scots law during its
formative period were embedded so firmly in its structure that many parts still bear an unmistakably
Roman stamp; they cannot be fully comprehended without a knowledge of the Roman institutions
from which they derive” (“The Influence of Roman Law on the Law of Scotland,” in The Character
and Influence of the Roman Civil Law: Historical Essays [London, 1988], 358–59).
19
Lord Mackenzie, Studies in Roman Law with Comparative Views of the Laws of France, England,
and Scotland, 2nd ed. (Edinburgh, 1865), 41. Lord Guthrie, one of Stevenson’s fellow law students
at Edinburgh, listed the five law exams they had to pass: Civil (i.e., Roman) Law, Scots Law, Scots
Conveyancing, Constitutional Law and Constitutional History, and Medical Jurisprudence. See his
Robert Louis Stevenson: Some Personal Recollections (Edinburgh, 1920), 36.
560 䡵 JOLLY
at Göttingen, reasoning that “the professor is to Law what Darwin has been to
Natural History, and I should like to understand Roman Law and a knowledge
of law is so necessary for all I hope to do.”20 When the plan fell through he was
bitterly disappointed; at Göttingen, he believed, “I should have become a good
specialist in law, and how that would have changed and bettered all my work, it
is easy to see.”21 The references to “all my work” and “all I hope to do” show
that Stevenson, who had already decided to pursue a literary career, thought of
his legal education not only in terms of professional qualifications but more broadly
as the foundation for certain kinds of literary work. As he continued to work for
his law degree in Edinburgh, his legal studies and writing projects ran side by
side.22 Stevenson passed his Advocates’ exam in July 1875, and his mother recorded
that he was “complimented on his knowledge of [Roman] Civil Law.”23
As well as including a strong grounding in Roman law, Stevenson’s Scottish
legal education incorporated a comparative dimension lacking from other, more
monolithic legal cultures, because “Scots law with its European and civilian [Ro-
man] background—latterly influenced by English law—stands . . . at the crossing
of two main highways of legal thought.”24 This was one of many ways in which
the mixed influences of Scotland’s colonial history helped Stevenson to make sense
of the multiple frames of cultural reference juxtaposed by nineteenth-century im-
perial expansion: it gave him the habit of comparative thought, which pervades
both In the South Seas and A Footnote to History. When contemplating different
styles of government, the relation between law and custom, or alien legal insti-
tutions such as the tapu, Stevenson compared what he found in the Pacific with
what he already knew, generally using the Highland comparison to establish com-
mon ground and the Roman comparison to measure difference. This style of
inquiry was known in the later nineteenth century as “the comparative method,”
and its founder, Henry Sumner Maine, held very similar views to Stevenson about
the role of Roman law in defining modern civilization.
Maine, a jurist and historian, was the author of Ancient Law: Its Connection
with the Early History of Society and its Relation to Modern Ideas (1861). The
book presented the development of Roman law as a bridge from the primitive to
the modern worlds, “bearing in its earliest portions the traces of the most remote
antiquity and supplying from its later rules the staple of the civil institutions by
which modern society is even now controlled.”25 Maine argued that Roman legal
conceptions had “exercised perfectly enormous influence on the intellectual di-
athesis of the modern world,” because, “of the subjects which have whetted the
intellectual appetite of the moderns, there is scarcely one, except Physics, which
20
Stevenson, Letters, 1:498; see also 1:499 n. 2.
21
Ibid., 1:504.
22
See ibid., 2:3, 5, 11.
23
Robert Louis Stevenson, “Notes from his Mother’s Diary,” in The Works of Robert Louis Stevenson,
Vailima Edition, vol. 26, Miscellanea (London, 1923), 328. He also did well in public law (323), and
Paul Maharg argues that this, rather than civil law, was his favorite subject (“Lorimer, Inglis and R.L.S.:
Law and the Kailyard Lockup,” Juridical Review, 1995, pt. 3, 281). Stevenson’s later application for
the chair of constitutional law and history at Edinburgh supports that view, but his letters from the
1870s refer far more often to Roman law than to any other law subject.
24
T. B. Smith, Studies Critical and Comparative (Edinburgh, 1962), xii.
25
Maine, Ancient Law, preface.
has not been filtered through Roman jurisprudence.”26 He argued that Roman
law had provided “a proper store of language and . . . an apparatus of appropriate
logical methods” for the Western mind to grapple with a variety of subjects,
including moral philosophy, the theology of the Western church, John Locke’s
theory of a social compact, and even Romantic visions of a state of nature.27 Overall,
Ancient Law proposed that Roman law had provided the foundation for intellectual
inquiry in the Western empire and had therefore decisively shaped the modern
world.28 It is the same proposition that Stevenson repeatedly put forward in his
Pacific nonfiction: that the Roman Empire, especially ways of thinking derived
from its legal science, had determined the modern, Western episteme.
To emphasize the legacies of the Roman Empire was not unusual in nineteenth-
century Britain; generations of classically educated Englishmen habitually looked
to Roman and Greek culture, especially literature, for the sources of their civili-
zation. At the turn of the twentieth century, comparisons between the Roman
and British Empires became particularly common, expressing both imperial pride
and anxiety. But the kinds of claims made by Maine and Stevenson about the
importance of Roman law were unusual.29 The jurist Frederick Pollock recalled
that when Maine was a student at Cambridge University, “even the rudiments of
Roman law were not then included in the ordinary training of English lawyers,”
a deficiency Maine addressed in his essay “Roman Law and Legal Education”
(1856).30 In this work of “advocacy,” designed to persuade a resistant readership
of the importance of Roman law for a “general” as well as “legal” education, he
wrote: “It may be doubted whether even the best educated men in England can
fully realise how vastly important an element is Roman law in the general mass of
human knowledge, and how largely it enters into and pervades and modifies all
products of human thought which are not exclusively English [i.e., which are
broadly European].”31 Arguing that “all men who speak and think” use expressions
derived from Roman law without even realizing it, he urged the English to study
this influential legal system.32 Maine bemoaned the “strange intellectual gulf”
between classical and legal studies in England and himself set out to bridge that
gulf through his work as a teacher (he was the first reader in Roman law and
jurisprudence at the Inns of Court’s Council of Legal Education) and a writer
whose audience extended far beyond the legal profession.33
Stevenson came to his appreciation of the importance of Roman law by a different
route than Maine. Whereas Maine was “one of the most brilliant classical scholars
26
Ibid., 282–83.
27
Ibid., 283, 289 (“extraordinarily indebted to Roman jurisprudence”), 295–98, 94 (“scarcely con-
ceals its Roman derivation”), and 60 and 282 (“The theory of Natural law is exclusively Roman”).
28
Ibid., 302.
29
“Rome continued to matter because of its history as well as its poetry,” Norman Vance writes in
The Victorians and Ancient Rome (Oxford, 1997), 197. There is no suggestion in Vance’s study that
Rome mattered to the Victorians because of its law, and the jurists Stevenson names in In the South
Seas as framers of the modern, Western mind do not appear among the Latin writers he discusses.
30
Frederick Pollock, “Maine, Sir Henry James Sumner,” Encyclopedia Brittanica, 11th ed., 17:432.
31
Henry Sumner Maine, “Roman Law and Legal Education” (1856), in his Village-Communities
in the East and West, new ed. (London, 1890), 361, 333.
32
Ibid., 346.
33
Ibid., 353, 377–78; R. C. J. Cocks, “Maine, Sir Henry James Sumner,” in Oxford Dictionary of
National Biography, ed. H. C. G. Matthew and Brian Harrison (Oxford, 2004).
562 䡵 JOLLY
of his time,” who had to pursue his study of Roman law in an environment largely
indifferent to it, Stevenson’s formal education in Roman law was far stronger than
his education in classical literature.34 Although he needed some knowledge of Latin
for his law degree, he never underwent the thorough steeping in classical literature
that an English contemporary of his own class would most likely have received at
school and university. He read Latin with a dictionary, relied on editions “with good
notes,” and frequently asked for help with his translations.35 Stevenson had not
internalized Latin literature in the way he ascribed to his English character Robert
Herrick, the exile in The Ebb-Tide for whom the Aeneid conjured “visions of En-
gland.”36 Reading Virgil provides Herrick with confirmation of his self-identity,
reinforcing his relations to father, class, and country; Stevenson, by contrast, re-
tained a sense of otherness, coming to the classics from the outside, struggling
with his imperfect grasp of the grammar and vocabulary. Yet, his cousin and
biographer, the Oxford-educated Graham Balfour, noted that “the Roman Empire
was far more of a reality to him than to many better scholars.”37 Balfour was
puzzled by the vividness of his cousin’s relation to a culture to which he lacked
the educated Englishman’s usual means of access—secure possession of the Latin
language and literature. But Stevenson had his own access to the “reality” of the
Roman Empire through his studies in Roman law. And, like Maine, he was less
interested in Roman law as a subject of study in itself than as a tool for mapping
the boundaries and contours of modernity.
Maine’s Ancient Law was enormously successful and influential, reaching a wide
audience through its accessible style and its relevance to contemporary debates on
ethics in modern commercial society, the government of India, and the factors
encouraging or hindering social progress.38 It was also the founding text in the
new nineteenth-century science of comparative law, a fact given institutional rec-
ognition when Maine became the first appointment to the new chair of historical
and comparative jurisprudence at the University of Oxford in 1869.39 In Ancient
Law, historical and comparative methods worked side by side as Maine conducted
an inquiry into the origins of modernity through a study of the development of
primitive law. He proposed a “law of progress”—that societies progress from co-
ownership to private property and “from Status to Contract,” that is, from “a
34
Pollock, “Maine,” 432.
35
Stevenson, Letters, 6:20, 60. “His whole relation to Latin,” Balfour noted, “was very curious and
interesting. He had never mastered the grammar of the language, and to the end made the most
elementary mistakes. Nevertheless, he had a keen appreciation of the best authors, and, indeed, I am
not sure that Virgil was not more to him than any other poet, ancient or modern.” “Technicalities of
law,” Balfour also noted, “were admitted to equal rights with authors of the Golden Age” in Stevenson’s
appreciation of Latin texts (Balfour, Life, 2:102).
36
Robert Louis Stevenson, “The Ebb-Tide,” in South Sea Tales, ed. Roslyn Jolly (Oxford, 1996),
125.
37
Balfour, Life, 1:61.
38
Stefan Collini, Donald Winch, and John Burrow, “The Clue to the Maze: The Appeal of the
Comparative Method,” in That Noble Science of Politics: A Study in Nineteenth-Century Intellectual
History, ed. Stefan Collini, Donald Winch, and John Burrow (Cambridge, 1983), 210; R. C. J. Cocks,
Sir Henry Maine: A Study in Victorian Jurisprudence (Cambridge, 1988), 1–2.
39
Montesquieu’s Spirit of the Laws (1748) was, of course, “the great precursor” but lacked the
systematic approach the Victorians deemed essential. See Frederick Pollock, “The History of Com-
parative Jurisprudence,” Journal of the Society of Comparative Legislation, 2nd ser., 5 (1903): 83, 86.
condition . . . in which all the relations of Persons are summed up in the relations
of Family . . . towards a phase of social order in which all these relations arise
from the free agreement of Individuals.”40 In George Stocking’s summary, Maine
hypothesized that this “linked development of the law of family and of property
reflected the central dynamic process in the growth of civilization.”41 The process
could be traced through the changes in Roman law, which in its earliest phases
represented the legal thinking of an archaic society, but in its maturity had set out
ideas and institutions that had shaped the modern world. It was this later Roman
jurisprudence, “the wisdom of Gaius or Papinian,” that Stevenson tended to see
as emblematic of advanced Western culture, and he consistently contrasted its
modes of thought to those underlying Pacific law.42
Although he took the early Roman law, accessible to historical study through
written records, as the “typical system” of primitive law, Maine strengthened his
understanding of primitive law with comparative observations of other contem-
porary or recent legal systems.43 He argued that “as societies do not advance
concurrently, but at different rates of progress, there have been epochs at which
men trained to habits of methodical observation have really been in a position to
watch and describe the infancy of mankind.”44 The study of India in the nineteenth
century provided the opportunity for such an exercise in the comparative method,
and Maine asserted the importance of the Indian village community for under-
standing “the infancy of law,” which he believed to be characterized “by the
prevalence of co-ownership, by the intermixture of personal with proprietary rights,
and by the confusion of public with private duties.”45 Closer to home, the Scottish
Highland clan yielded a comparative example that illuminated Maine’s study of
early Roman patriarchal society.46 Such comparisons, Maine believed, could sup-
plement the study of Roman law in establishing the stages of legal development
through which the modern West had already passed. India became increasingly
important to Maine’s intellectual project, which he “hesitate[d] to call . . . Com-
parative Jurisprudence because, if it ever exists, its area will be so much wider than
the field of law.”47 He proposed that comparisons between India and Europe
should include the topics of “laws, institutions, customs, ideas, and social forces”;
that is, he anticipated a movement outward from comparative jurisprudence to
include much of the field now covered by sociology and anthropology.48 This was
the area with which Stevenson wished to engage in In the South Seas, as the
American historian Henry Adams noted after talking to him in Samoa in 1890:
“He will tell his experiences in the form of Travels, and I was rather surprised to
40
Maine, Ancient Law, 141, 140.
41
George W. Stocking Jr., Victorian Anthropology (New York, 1987), 124.
42
43
Maine, Ancient Law, 135.
44
Ibid., 99.
45
Ibid., 220.
46
Ibid., 194, 200.
47
Henry Sumner Maine, “The Effects of Observation of India on Modern European Thought,”
Rede Lecture for 1875, University of Cambridge, in Village Communities in the East and West, 3rd
ed. (London, 1876), 210.
48
Ibid., 230.
564 䡵 JOLLY
find that his range of study included pretty much everything: . . . sociology, laws,
politics and ethnology.”49
II. STEVENSON AND MAINE
The similarities between Maine and Stevenson are suggestive. They shared a dis-
tinctive interest in Roman law as not only the key to Roman civilization but a
tool for analyzing problems of social development and cultural difference in the
modern world. Each also mapped out an investigative project (Maine in India,
Stevenson in the Pacific) that defied existing disciplinary boundaries but was sit-
uated somewhere between the expanding concerns of comparative jurisprudence
and the emergent field of anthropology. Were these similarities merely coincidental?
Was Stevenson influenced by Maine?
The only direct reference to Maine I have found among Stevenson’s published
writings and sayings is in an anecdote recorded by his biographer, Graham Balfour.
“I had been reading Maine,” was Stevenson’s explanation of how he managed,
without having read the textbook, to pass the subject “Ethical and Metaphysical
Philosophy” in his preliminary examination for the Scottish Bar in November
1872.50 At this time, Stevenson could have been reading either the famous Ancient
Law (1861) or the recent Village Communities (1871). The context of the com-
ment—a joking defense of his preference for books outside the curriculum—hardly
suggests a weighty intellectual encounter. Yet his later writings provide internal
evidence that Stevenson had absorbed Maine’s ideas. Stevenson’s A Footnote to
History begins:
The story I have to tell is still going on as I write; the characters are alive and active;
it is a piece of contemporary history in the most exact sense. And yet, for all its
actuality and the part played in it by mails and telegraphs and iron war-ships, the
ideas and the manners of the native actors date back before the Roman Empire. They
are Christians, church-goers, singers of hymns at family worship, hardy cricketers;
their books are printed in London by Spottiswoode, Trübner, or the Tract Society;
but in most other points they are the contemporaries of our tattooed ancestors who
drove their chariots on the wrong side of the Roman wall. We have passed the feudal
system; they are not yet clear of the patriarchal. We are in the thick of the age of
finance; they are in a period of communism. And this makes them hard to understand.51
The passage is full of Maine’s terms and ideas. Maine advocated a patriarchal theory
of the origins of social organization that marginalized him within nineteenth-
century anthropology, which was dominated by the “matrifocal” theories of J. F.
49
R. C. Terry, ed., Robert Louis Stevenson: Interviews and Recollections (London, 1996), 159.
50
Balfour, Life, 1:106.
51
Robert Louis Stevenson, A Footnote to History: Eight Years of Trouble in Samoa (London, 1892),
1–2.
McLennan and Lewis H. Morgan.52 Maine saw feudalism, which relied on contracts
rather than blood relations to create social units, as the first stage in the breakdown
of kinship groups based on the power of the father, and he believed that societies
“passed through the crucible of feudalism” in “the gradual disentanglement of
the separate rights of individuals from the blended rights of a community,” which
achieved its fullest form in the modern commercial age.53 This age was charac-
terized by the recognition of the individual as the basic unit of society, by respect
for private property, and by the proliferation of contracts as the legal mechanisms
governing the ever more complex relations between individuals over private prop-
erty.54 The modern commercial age represented the furthest legal and social de-
velopment from the era of co-ownership, which Maine posited as the earliest stage
of social organization. This stage survived, Maine claimed, in the Indian village
community, which he described as “at once an organised patriarchal society and
an assemblage of co-proprietors,” and as “a body of kindred holding a domain in
common.”55 Drawing on a range of comparisons with other ancient societies,
Maine argued: “We have the strongest reason for thinking that property once
belonged not to individuals nor even to isolated families, but to larger societies
composed on the patriarchal model,” from which various modes of family and
individual ownership gradually evolved.56
Writing about traditional Polynesian societies and their collision with the modern
societies of the West in the age of trade and colonization, Stevenson employed
the same socioevolutionary categories Maine used in Ancient Law: “feudal,” “pa-
triarchal,” “age of finance,” and “period of communism.” Phrases such as “we
have passed” and “they are not yet clear” at the beginning of A Footnote to History
show that he shared Maine’s belief that these stages occurred in a definite order
and that European societies had already covered the developmental ground that
primitive societies had yet to traverse. He also employed Maine’s categories in In
the South Seas in a well-known instance of the “Highland comparison.” Noting
parallels between the Marquesas and the Scottish Highlands as colonized lands,
he observed “the commercial age, in each, succeeding at a bound to an age of
war abroad and patriarchal communism at home.”57 The point is that the feudal
stage and the gradual evolution of private property and individual rights, which
were meant to come between “patriarchal communism” and the “commercial age,”
52
Maine, Ancient Law, 101–2. See Stocking, Victorian Anthropology, 117; and Adam Kuper, “The
Rise and Fall of Maine’s Patriarchal Society,” in The Victorian Achievement of Sir Henry Maine: A
Centennial Reappraisal, ed. Alan Diamond (Cambridge, 1991), 99–110. For the opposing theory, see
John F. McLennan, Primitive Marriage: An Inquiry into the Origin of the Form of Capture in Marriage
Ceremonies, ed. Peter Riviére (1865; Chicago, 1970); and Lewis H. Morgan, Ancient Society, ed. Leslie
A. White (1877; Cambridge, MA, 1964). Morgan identified Maine as “holding foremost rank” among
the patriarchal theorists (428). Maine defended his patriarchal theory against the ideas of McLennan
and Morgan in his “Theories of Primitive Society,” in Early Law and Custom, new ed. (London, 1890),
192–219.
53
Maine, Ancient Law, 303–4, 197, 223–24.
54
On the individual replacing the kinship group as the unit of society, see ibid., 104, 140, 152, 214;
on the emergence of private property, see 215, 223–24; and on the development of contract, see
140–41, 252–55.
55
Ibid., 216, 217.
56
Ibid., 222–23.
57
566 䡵 JOLLY
were left out in both the Highland and Marquesan experience, where the normal
evolutionary pattern was disrupted and accelerated by the unnatural intervention
of colonialism, with profoundly dislocating effects on the colonized society.
With so little external evidence, one can only speculate about how much Ste-
venson was directly influenced by Maine. But even setting aside the question of
influence, a comparison of their attempts to understand alien legal systems is
illuminating. Their common ground reveals the central concerns of early legal
anthropology. Their divergences show the different paths nineteenth-century com-
parative jurisprudence could take, with differing implications for colonial admin-
istration. The similarities and differences between Stevenson and Maine are re-
vealed by examining three aspects of methodology: their shared recognition of the
legal quality of unfamiliar social practices, their differing degrees of commitment
to a model of evolutionary progress, and the quite different ways in which they
set the parameters of cultural comparison.
Stevenson’s comparative jurisprudence, like Maine’s, depended on recognizing
in other cultures (past or foreign) a range of legal institutions that did not nec-
essarily fit with modern European conceptions of law. Maine helped to set the
course of legal anthropology, and British social anthropology in general, through
his development of “a ‘jural’ model of social structure” in which social units were
“linked to each other by reciprocal rights and duties, which were sustained by a
body of sanctions.”58 This was a major break from the traditional European belief
that primitive people lived—whether in Arcadian innocence or in savage igno-
rance—without law. That belief was reinforced by nineteenth-century theories of
positive law, which required the presence of a sovereign and a command to define
law. Maine specifically cautioned the student of comparative law against using the
model of positive law put forward by the jurists Jeremy Bentham and John Austin,
who “resolve every law into a command of the lawgiver, an obligation imposed
thereby on the citizen, and a sanction threatened in the event of disobedience;
and it is further predicated of the command, which is the first element in a law,
that it must prescribe, not a single act, but a series or number of acts of the same
class or kind.” Rather, he argued that “the farther we penetrate into the primitive
history of thought, the farther we find ourselves from a conception of law which
at all resembles a compound of the elements which Bentham determined. It is
certain that, in the infancy of mankind, no sort of legislature, not even a distinct
author of law, is contemplated or conceived of. Law has scarcely reached the footing
of custom; it is rather a habit.”59
58
Kuper, “Rise and Fall,” 109. For the influence of Maine’s jural approach on twentieth-century
British social anthropologists, see ibid., 110; J. D. Y. Peel, “Maine as an Ancestor of the Social Sciences,”
in Diamond, Victorian Achievement, 180; and Stocking, After Tylor, 357–58. Stocking identifies Rad-
cliffe-Brown’s essay “Patrilineal and Matrilineal Succession” (1935) as “the moment when Sir Henry
Maine, whose commitment to patriarchy had pushed him to the sidelines of British anthropology during
its evolutionary and early post-evolutionary phases, reentered the emerging social anthropological main-
stream, as the precursory theoretician of corporate groups” (357). He notes that “Radcliffe-Brown’s
succession article was full of the terminology of Roman law . . . and clearly drew on Maine at a number
of points. . . . From that point on, Maine was to be a potent influence on several generations of British
social anthropologists” (357–58).
59
Maine, Ancient Law, 6. Positive law theory rejected the concept of customary law, arguing that
custom did not belong to the province of jurisprudence, but to that of “positive morality,” a set of
social norms “binding only by moral sanctions—by the penalties of opinion”; custom could be turned
Despite the theoretical prestige of the Austin-Bentham model of positive law

in nineteenth-century England, lawyers working in international contexts often
found it impractical.60 The English ruled India through a patchwork of English
common law, the customary laws of different ethnic and religious groups, newly
codified laws intended to apply to both colonizers and colonized, and, when
nothing else was available, the dictates of “equity and good conscience”; the
Benthamite impulse toward codification of the laws in English India put some
customary laws on a “positive” footing and supplanted others but never completely
eradicated the customary basis of much law or the legal force of many customs.61
Still, John Stuart Mill argued that the English did not pay enough attention to
customary law in their administration of India; he indicted the British failure to
recognize “the customs of the country” in matters of land ownership and claimed
that the injustices arising from this failure had been perpetrated “by the English
rulers of India, for the most part innocently, from sheer inability to understand
institutions and customs almost identical with those which prevailed in their own
country a few centuries ago.”62 These rulers, Mill suggested, were in need of just
the sort of education in the history of ideas offered by Maine’s comparative work
in Ancient Law and Village Communities.
If in the practical world of colonial administration, customary law was not always
recognized, in the developing field of anthropology its position was also not yet
secure. Seventy years after Maine, anthropologists were still arguing against as-
sumptions of the lawlessness of primitive society. In 1934, H. Ian Hogbin wrote:
“The failure to perceive the existence, in primitive communities, of any law other
than measures of repression against violence has been due mainly to a too narrow
conception of law, as consisting in a body of rules expressly laid down and enforced
by institutions existing for the purpose. The legal system has been identified with
the person or organisation having the power to create law.”63 This was precisely
the view Maine had argued against, although the importance of his doing so was
not always appreciated by twentieth-century anthropologists. In 1926, Bronislaw
Malinowski attacked the “dogma of the automatic submission [of the savage] to
custom,” which he claimed had “dominated comparative studies of law from Sir
into law, but only through the actions of a “sovereign legislator,” in which case it became positive law
([John Stuart Mill], “Austin on Jurisprudence,” Edinburgh Review 118 [1863]: 457–58).
60
For example, the Society of Comparative Legislation noted that in a single year the Judicial Com-
mittee of the Privy Council might “be called upon to consider questions of constitutional law of moment
to all civilized countries, cases dependent on Hindu or Mahommedan law, on texts of the Digest, on
the Ordonnances of Louis XIV, on the Coutume de Paris or other portions of the old customary law
of France before the Revolution, or on the ancient customs of Normandy” (“Statement of the Objects
of the Society,” Journal of the Society of Comparative Legislation 1 [1896–97]: vii).
61
James Bryce, The Ancient Roman Empire and the British Empire in India; The Diffusion of Roman
and English Law throughout the World: Two Historical Studies (London, 1914), 107–22.
62
John Stuart Mill, “Mr. Maine on Village Communities,” Fortnightly Review 15 (1871): 550. Mill’s
own role in the administration of India is discussed by Eric Stokes in The English Utilitarians and
India (Oxford, 1959).
63
H. Ian Hogbin, Law and Order in Polynesia: A Study of Primitive Legal Institutions (1934; repr.,
Hamden, CT, 1961), 77. Hogbin included Maine in his criticisms (76), but Maine’s argument against
Bentham and Austin is very close to Hogbin’s own assertion that “the system of clearly recognised
obligations that has been discovered wherever a primitive tribe has been carefully investigated, does
not trace its origin to a series of express commands issued by some superior authority, not is it the
outcome of a purposive effort” (78).
568 䡵 JOLLY
Henry Maine to the most recent authorities.”64 Maine’s view of primitive law as
unconsciously internalized custom or habit blinded him, Malinowski argued, to
the “definite social machinery” enforcing the “civil jurisprudence” of primitive
societies.65 Nevertheless, the stress Maine placed on the recognition of custom as
law was a necessary precondition for the identification and study of alternative
legal systems that were not tied to modern European ideas of legislation.
Stevenson critically represented characters such as John Wiltshire, the narrator
of his novella “The Beach of Falesá,” who said, “They haven’t any real government
or any real law, that’s what you’ve got to knock into their heads.”66 Wiltshire’s
limited, ideologically bound perspective forms the basis of a sustained exercise in
narrative irony. Wiltshire, although he does not know it, is “sunk over the ears in
Roman civilization” and deaf to all that speaks to him from outside that civili-
zation.67 Stevenson was not. He looked outside the Roman world and saw, not
chaos or a void, but an alternative legal culture that, however “hard to understand,”
had its own coherence and validity.68 Perception of the presence of law in what
was apparently only custom or habit, such as Maine advocated, characterizes the
analysis of Pacific societies in both In the South Seas and A Footnote to History.
But Stevenson also looked for what Malinowski would later identify as the key
element of legal anthropology, the “definite social machinery of binding force.”69
In his Pacific nonfiction, Stevenson wrote about two such legal mechanisms, tapu
and reciprocity, which are discussed at greater length below.
As well as paying attention to customary law, Stevenson observed the more obvious
manifestations of power and control in Pacific societies. These could take forms
inassimilable to the ideas of uniformity and repetition that defined European legal
science, but, like Maine, Stevenson recognized that this meant the presence of a
different kind of law, rather than no law at all. He made this point in his account
of the government of Butaritari under the violent, absolute rule of King Nakaeia:
“The fear of Nakaeia filled the land. No regularity of justice was affected; there was
no trial, there were no officers of the law; it seems there was but one penalty, the
capital; and daylight assault and midnight murder were the forms of process.”70 But
Stevenson was careful to point out that what the European sees as the absence of
law might not strike the indigenous subject in the same way: “Deeds that smell
to us of murder wore to his subjects the reverend face of justice . . . natives to
this day recall with respect the firmness of his government.”71 Indeed, his descrip-
tion of the reign of Nakaeia corresponds quite closely to what Maine identified
as the earliest stage of legal development, the era of the themistes, or king’s judg-
ments, when “the only authoritative statement of right and wrong is a judicial
sentence after the facts” rather than a law set down in advance.72
Both Maine and Stevenson were interested in the relation of law to the evolution
64
Bronislaw Malinowski, Crime and Custom in Savage Society (London, 1926), 14, 56.
65
Ibid., 55, 56.
66
Robert Louis Stevenson, “The Beach of Falesá,” in South Sea Tales, 24.
67
Stevenson, Letters, 7:187.
68
Stevenson, A Footnote to History, 2.
69
Malinowski, Crime and Custom, 55.
70
71
Ibid., 161.
72
of societies. Maine’s thinking about the stages of legal development was readily
assimilable to the prevailing intellectual climate of evolutionism in the second half
of the nineteenth century, as his contemporaries saw. Leslie Stephen wrote of
Ancient Law: “Coming soon after the publication of Darwin’s great book, which
had made the theory of evolution a great force in natural philosophy, it introduced
a correlative method into the philosophy of institutions.”73 Praising the achieve-
ments of “both natural and moral science” during the Victorian period, the jurist
Frederick Pollock asserted in 1903 that “the transformation of political science
about forty years ago cannot be disconnected from the all but simultaneous putting
forth of new and far-reaching ideas in the study of organic nature. Ancient Law
and The Origin of Species were really the outcome, in different branches, of one
and the same intellectual movement—that which we now associate with the word
Evolution.”74
Later scholars have been more cautious in identifying Maine with evolutionism,
pointing out that his laws of social development were never proposed as universal
and that his methodology was modeled not on Darwin’s comparative anatomy
but on Max Müller’s comparative philology.75 Maine himself had reservations about
making comparative jurisprudence an evolutionary science, reminding his readers
of “the vast varieties of circumstance accompanying the stern struggle for exis-
tence.”76 He warned that the Indian and Scottish village communities did not
necessarily “represent distinct stages in a process of transmutation which has been
everywhere accomplished in the same manner” and that Roman legal conceptions
did not “typify the necessary results of advancing thought under all conditions.”77
Nevertheless, his belief in a “law of Progress,” his association of primitive law with
a state of social and jurisprudential “infancy,” and his model of staged legal de-
velopment, in which the order of the stages never varied, all revealed his generally
evolutionist approach. As Pollock saw it, the purpose of Maine’s books was to
study archaic societies (whether through observation or records) and thereby “to
establish and illustrate the normal process of development in legal and political
ideas.”78
In both In the South Seas and A Footnote to History, Stevenson invoked this
“normal process of development” in terms identical to Maine’s. He shared Maine’s
assumption that primitive cultures lagged behind on the evolutionary path followed
by European society. Accompanied by metaphors of infancy and maturity, such
thinking could lead to the belief that members of traditional societies recapitulated
not only earlier stages in the historical development of Western society but also
earlier stages in the life cycle of the Western subject. In A Footnote to History,
Stevenson asserted that the child is the native’s “true analogue,” a remark that
brings him surprisingly close to his character Wiltshire, from whose racist views
73
“Maine, Sir Henry James Sumner (1822–1888),” in Dictionary of National Biography, ed. Sidney
Lee (London, 1893), 35:345–46.
74
Pollock, “History of Comparative Jurisprudence,” 79.
75
See Stocking, Victorian Anthropology, 125–28; Alan D. J. Macfarlane, “Some Contributions of
Maine to History and Anthropology,” in Diamond, Victorian Achievement, 138–40; and Peel, “Maine
as an Ancestor of the Social Sciences,” 182.
76
Maine, “Theories of Primitive Society,” 219.
77
78
Pollock, “Maine,” 433.
570 䡵 JOLLY
he generally maintains an ironic distance.79 Wiltshire claims, “It’s easy to find out
what Kanakas think. Just go back to yourself any way round from ten to fifteen
years old, and there’s an average Kanaka.”80 But the dialogic method of “The
Beach of Falesá,” no less than its narrative irony, challenges Wiltshire’s view. The
commercial greed of white men is childish in the eyes of Wiltshire’s Polynesian
wife, Uma; “‘You see, you get copra,’ she said, the same as you might offer candies
to a child.”81 In another of Stevenson’s short stories, “The Isle of Voices,” the
Hawaiian Keola exploits the childishness of Europeans; “Keola knew white men
are like children and only believe their own stories; so about himself he told them
what he pleased.”82
In such ways, Stevenson’s fiction subverts the evolutionist orthodoxies expressed
in his nonfiction. But there, too, Stevenson showed that his subscription to evo-
lutionist thinking generally, and to Maine’s model of societal progress in particular,
was far from absolute. Reid has demonstrated that, while drawn to the ideas of
evolutionary anthropology, Stevenson was always skeptical about the narratives of
progress embedded in Victorian cultural evolutionism.83 He was certainly a less
committed progressivist than Maine, much readier to question the gains of social
evolution, as In the South Seas repeatedly shows. In Butaritari, after the tyrant
Nakaeia was succeeded by two weaker brothers, a rebellion of the “Old Men” or
“high chiefs and notables” stripped the monarchy of its power, and government
for a while centered on the Speak House. The change of government corresponds
with Maine’s second stage of legal development, the emergence of a “juristical
oligarchy” that claims “to monopolize the knowledge of the laws” and “the prin-
ciples by which quarrels are decided.” Maine calls this stage the era of customary
law, a step forward in legal evolution from the era of the judgments of kings.84
Stevenson was unimpressed by such a manifestation of evolutionary progress at
Butaritari: “The Old Men enjoyed a festival of public speaking; the laws were
continually changed, never enforced; the commons had an opportunity to regret
the merits of Nakaeia.”85 An even greater challenge to progressivist thinking came
at Apemama, also in the Gilbert Islands, where Stevenson thought that the regime
of the tyrant, Tembinok’, represented “the problem (perhaps) of to-morrow for
ourselves.”86 Socialism, which Stevenson had argued in his 1887 essay “The Day
After Tomorrow” would come about through a process of “evolution,” might
look something like this, and Stevenson doubted the benefits of such a devel-
79
80
Stevenson, “The Beach of Falesá,” 55. See also Stevenson, A Footnote to History, 41. Kathleen
Bailey Linehan discusses “the conception of the Polynesian as a child” in a range of Stevenson’s Pacific
works; see “Taking Up with Kanakas: Stevenson’s Complex Social Criticism in ‘The Beach of Falesá,’”
English Literature in Transition, 1880–1920 33, no. 4 (1990): 410–11. She argues that “Stevenson’s
likening of Polynesians to children is part of a larger framework of hierarchical thinking about race
probably so unreflectingly absorbed from popular culture that he could not easily see its inconsistency
with his own consciously proclaimed egalitarian views” (411).
81
Stevenson, “The Beach of Falesá,” 28.
82
Robert Louis Stevenson, “The Isle of Voices,” in South Sea Tales, 112.
83
Reid, “Robert Louis Stevenson and the ‘Romance of Anthropology,’” 49–50, 55–57.
84
Maine, Ancient Law, 10. He argued that the era of customary law was followed by the era of legal
codes, which came with the discovery of the art of writing (12).
85
Stevenson, In the South Seas, 163–64.
86
Ibid., 238.
opment.87 Furthermore, the very notion that the government of a Micronesian

island might provide a mirror (however undesirable) of Europe’s future upset the
assumption of unidirectional progress central to Victorian socioevolutionism. This
cluster of ideas—that progress is not always beneficial, that socioevolutionary
change may be circular rather than linear, and that Europe might evolve toward
rather than away from the kinds of societies found in the Pacific—had significant
implications for Stevenson’s comparative jurisprudence and for the opinions about
colonial government that he derived from it. It made him more skeptical about
European interference in the affairs of Pacific countries, and more open to the
merits of indigenous self-rule, than many of his contemporaries.
Stevenson thus differed philosophically from Maine over the question of progress,
but the greatest difference between them was methodological: Stevenson allowed
himself more latitude in his legal comparisons. Maine modeled comparative juris-
prudence on the science of comparative linguistics, accepting its Indo-European
parameters. He was, as George Stocking points out, “very dubious of any con-
nection between ‘barbarous Aryan usage and savage non-Aryan practice.’”88 Ste-
venson had no such qualms, frequently comparing Polynesian ideas and practices
with earlier stages of European civilization. So, for example, he wrote of the
impersonality of revenge and the notion of the group’s share in the guilt of any
one member: “All over the islands, as at home among our own ancestors, it will
be observed that the avenger takes no particular heed to strike an individual.”89
He readily identified Samoan with Highland culture, claiming, for example, that
“the clan system, and that imperfect idea of justice which is its worst feature, are
still lively in Samoa; . . . it is held the duty of a judge to favour kinsmen.”90 These
comparisons took him outside “the Indo-European family of nations,” and this
led to an important difference in methodology.91 Whereas Maine traced lines of
“filiation and mutual relation” connecting phenomena that, however divergent
their descent and variable their rate of progress, could be argued to have a common
parentage, Stevenson sought to establish similarities between Polynesian and Eu-
ropean social institutions not through filiation but through analogy.92 He could
not claim that Polynesians and Europeans belonged to the same “family of nations”
in any scientific sense; his Highland comparison could only establish a “sense of
kinship” “between a South Sea people and some of my own folk at home.”93 This
“sense of kinship,” based as it was on a belief in “the psychic unity of mankind,”
put Stevenson in the opposite camp to Maine on one of the major issues of
87
Robert Louis Stevenson, “The Day after Tomorrow” (1887), in The Lantern-Bearers and Other
Essays, ed. Jeremy Treglown (New York, 1988), 203. “Society will then [under socialism] be something
not wholly unlike a cotton plantation in the old days,” a “beneficent tyranny” (206, 203); cf. “the
beneficence” of the “stern rule” in Apemama, where “life flows in the isle from day to day as in a
model plantation under a model planter” (Stevenson, In the South Seas, 237).
88
Stocking, Victorian Anthropology, 126.
89
Stevenson, In the South Seas, 72. Maine identified the same feature of primitive societies (Ancient
Law, 105) but would not have made a comparison exceeding the Indo-European “family.”
90
91
92
Maine, “Effects of Observation of India,” 224.
93
572 䡵 JOLLY
nineteenth-century anthropology: the “problem of human unity.”94 Despite the

great significance he attached to the division between Roman and non-Roman
cultures, Stevenson’s belief in the underlying “kinship” of human beings of dif-
ferent races meant that the division was, in his mind, value free. The Roman system
was not necessarily superior to the usages found in “zones unromanised,” and
Stevenson’s comparative jurisprudence does not place them in a stable hierarchy
of value, preferring instead to bring the two into mutually illuminating dialogues.
III. STEVENSON’S COMPARATIVE JURISPRUDENCE

The concept of tapu is the prime instance in In the South Seas of how Western
thinking is challenged by moving outside the zone of Roman law. Stevenson writes:
the nature of that institution is much misunderstood in Europe. It is taken usually

in the sense of a meaningless or wanton prohibition, such as that which to-day prevents
women in some countries from smoking, or yesterday prevented any one in Scotland
from taking a walk on Sunday. The error is no less natural than it is unjust. The
Polynesians have not been trained in the bracing, practical thought of ancient Rome;
with them the idea of law has not been disengaged from that of morals or propriety;
so that tapu has to cover the whole field, and implies indifferently that an act is
criminal, immoral, against sound public policy, unbecoming or (as we say) “not in
good form.”95
Maine had noted that the earliest legal codes, “both in the East and in the West,”
“mingled up religious, civil, and merely moral ordinances, without any regard to
differences in their essential character.” In contrast, he argued, “the severance of
law from morality, and of religion from law, belong[ed] very distinctly to the later
stages of mental progress,” as embodied by the mature Roman jurisprudence.96
Identifying the non-Roman quality of the tapu as a legal institution allowed Ste-
venson to perceive that Pacific cultures did not operate without, or before, the
law, but rather were highly regulated by a legal system very foreign to the modern
European mind. He used the key reference point of Roman civilization and its
“constraining and preventing” force on the European imagination to show that
while later Roman jurisprudence distinguished the criminal from the immoral or
impolitic, a distinction modern Europeans unquestioningly accept, Polynesian ju-
risprudence covers “the whole field,” so that the tapu defines a much broader
range of infractions against social order than Europeans usually associate with law.97
Thus while Europeans separate “meaningless or wanton prohibitions” (such as
those concerning gender), which are enforced by ideology, from the prohibitions
94
Stocking, Victorian Anthropology, 127, 159. “Comparing similar phenomena, without regard to
racial origin” was also Andrew Lang’s method in studying myth and ritual (Stocking, After Tylor,
81–82). The methodological differences between Stevenson and Maine in the field of comparative
jurisprudence paralleled those between Lang and Müller in the field of comparative mythology (ibid.,
53–55).
95
96
97
Stevenson, In the South Seas, 9, 39.
and obligations enforced by criminal and civil law, Pacific societies mingled the
two categories. “Many tapus were in consequence absurd enough,” wrote Ste-
venson, especially those “meaningless proprieties” concerned with limiting the
freedoms of women, but he also argued that “the tapu is more often the instrument
of wise and needful restrictions”98
Some tapus were put in place by the command of a sovereign and enforced by
his threat of punishment, and these were assimilable to the modern European
concept of positive law. Stevenson gives examples of these kinds of tapus; in Bu-
taritari in the Gilbert Islands only the King could raise or restore the tapu against
liquor; in Apemama the Stevensons’ compound was rendered inaccessible to the
locals by “the tremendous sanction of the tapu and the guns of [King] Tembinok’”;
and in the Marquesas a tapu to conserve a particular kind of scarce fish could only
be imposed by “the old, legitimate cannibal” chief of the district, not by the new
puppet chief of French rule.99 In other cases the tapu worked not through the
exercise of sovereign power, but as an authoritative example that could take on a
social force: thus, the Marquesan chief Kooamua “established a forest law” to
conserve coco palms by placing a tapu on his own trees and relying on the common
people to follow his example; here the tapu still worked, however indirectly, as
“the organ of paternal government.”100 But tapus could also be instituted by
individuals (or, perhaps more correctly, families) to protect private rights. Steven-
son noted one instance of this in the Marquesas, when drought sent the inhabitants
of Anaho into the next valley to gain breadfruit from their neighbors, while a
nearby cluster of fruit-bearing trees was left untouched: “‘Why do you not take
these?’ I asked. ‘Tapu’ [was the answer]; and I thought to myself (after the manner
of dull travellers) what children and fools these people were to toil over the moun-
tain . . . when the staff of life was thus growing at their door. I was the more in
error. In the general destruction these surviving trees were enough only for the
family of the proprietor, and by the simple expedient of declaring a tapu he en-
forced his right.”101 The tapu was a manifestation of “that intellectual condition
in which civil obligation and religious duty are inevitably confounded,” a condition
Maine identified with a state of social “infancy.”102 However, once Stevenson
understood the socially regulative function of the tapu, he realized his “error” in
calling the Marquesans “children” for obeying it, for it helped to maintain justice
and harmony in a community under pressure.
Some tapus, Stevenson noted, were not traceable to the legislative power of a
sovereign, family, or private individual but existed wholly in the field of custom
and received knowledge, such as the tapus governing gender ideology.103 Except
for those enforced at gunpoint by Tembinok’, in all the instances observed by
Stevenson, “the sanction of the tapu is superstitious; and the punishment of in-
fraction either a wasting or a deadly sickness”; that is, punishment was believed
to be automatic and inevitable, not reliant on human agency.104 Belief in super-
98
Ibid., 39, 40.
99
Ibid., 175, 178, 220, 38.
100
Ibid., 38, 40.
101
Ibid., 40–41.
102
103
104
Ibid., 41.
574 䡵 JOLLY
natural forces thus served the purpose of social regulation in a system of rights
and obligations that constituted the civil as well as the criminal law of the land.
Rather than dismissing the system’s reliance on superstition as the manifestation
of a primitive mental condition, Stevenson paid attention to the way that super-
stition functioned to support social order. In his discussion of the administration
of justice in the Marquesas, this led him to dispute the idea that the supposedly
more highly evolved legal institutions are the more effective or the more intel-
lectually advanced.
In the Pacific, Stevenson learned that the superstitious sanction of the tapu
could work as an extremely effective device for the detection of crime. It was
believed that the sickness attendant on eating tapu fruit could only be cured by
priests using leaves from the tree robbed; to be saved, the thief therefore had to
confess whom he had robbed so that the correct leaves could be obtained for his
cure. Stevenson speculated that the idea of secret tapus could work even more
broadly “as a politic device to spread uneasiness and extort confessions: so that,
when a man is ailing, he shall ransack his brain for any possible offence, and send
at once for any proprietor whose rights he has invaded. ‘Had you hidden a tapu?’
we may conceive him asking; and I cannot imagine the proprietor gainsaying it.”105
Stevenson was much struck by the “evidences of design” and possibilities for
manipulation in a system regarded with such superstitious dread, and he asserted
that “even if it were not originally invented, its details have plainly been arranged
by the authorities of some Polynesian Scotland Yard.”106 Against the intellectual
elegance of this system for the detection, exposure, and punishment of crime,
Stevenson contrasted the methods of the French colonial administration: “I was
admiring, in the tapu system, the ingenuity of native methods of detection; there
is not much to admire in those of the French, and to lock up a timid child in a
dark room, and, if he prove obstinate, lock up his sister in the next, is neither
novel nor humane.”107 Indeed, he asserted, the French system was based on a
“barbarous injustice” whereby the “state of accusation” was much more painful
than the “state of conviction,” thus encouraging the innocent as well as the guilty
to confess and risking a failure to detect the actual criminal at all.108
Stevenson’s understanding of tapu as an institution of civil law shows how he
moved beyond the European notion of positive law to a subtler appreciation of
legal culture such as Maine had advocated. This also enabled him to recognize
the other great pillar of Pacific civil law, the principle of reciprocity. In his story
of the Anaho drought in In the South Seas, Stevenson showed how, in the problem
of managing scarce resources, the negative force of prohibition (tapu) worked
alongside the positive force of obligation (gift giving); when they crossed the
mountain, each householder of Anaho chose an inhabitant of the next valley, “‘gave
him his name’—an onerous gift, but one not to be rejected—and from this im-
provised relative proceeded to draw his supplies, for all the world as though he
had paid for them.”109 The force of reciprocity called into play by the “onerous
105
Ibid.
106
Ibid., 42.
107
Ibid., 53–54.
108
Ibid., 53.
109
Ibid., 40.
gift” replaces what to the modern, Western mind is the more accessible notion of
commercial transaction, and Stevenson’s observation that the gift was “not to be
rejected” recognizes the legal force accompanying the act. Malinowski would de-
velop this idea; using the example of the Trobriand Islanders in Melanesia, he
argued that reciprocity is “a legal binding form,” which fulfills a “social function
in safeguarding the continuity and adequacy of mutual services.”110
Although Stevenson grasped this key principle of indigenous Pacific jurispru-
dence and recognized its effectiveness in the Marquesas, he regarded it as a failure
in Samoa. In A Footnote to History, he discussed the obligations of hospitality and
gift giving under the heading “Elements of Discord: Native,” presenting them as
forces not binding communities together but pulling them apart. He used examples
both from the Samoan language and from his own experience at Vailima to show
the burden placed on individuals by “the loose communism in which a family
dwells.”111 Taking an uncharacteristically Whiggish position, he condemned a sys-
tem that “taxes industry to pamper idleness,” wherein “property stands bound in
the midst of chartered marauders,” as a major factor hindering social and political
progress in Samoa.112
Stevenson believed that, in Samoa, the practice of gift giving was being abused
because the principle of reciprocity was not being respected: “It is true the beggar
was supposed in time to make a return, somewhat as by the Roman contract of
mutuum. But the obligation was only moral; it could not be, or was not, enforced;
as a matter of fact, it was disregarded.”113 Here again is a reference point from
Roman law: the mutuum, or loan for consumption, a form of contract (and thus
in Maine’s terms definitively modern) falling within the Roman law of obliga-
tions.114 But whereas Stevenson recognized that the tapu could not be understood
in terms of Roman law, he measured the Samoan system of reciprocity against
“the Roman contract of mutuum” and found it wanting. Judging the principle
of reciprocity to be “only moral” and therefore unenforceable, he removed it from
the field of law. He did not view the practice of gift giving in Samoa as part of a
self-regulating system of mutual obligations, of the kind that Malinowski would
later make the defining characteristic of primitive civil law, wherein “every chain
of reciprocity is made the more binding by being part and parcel of a whole system
of mutualities.”115
It is tempting to think that Stevenson simply failed to understand the forces in
play, that, in this case, his “Roman” mind took over, “constraining and preventing”
110
Malinowski, Crime and Custom, 24.
111
112
Ibid., 17, 13.
113
Ibid., 14.
114
Justinian wrote that the mutuum concerns things “we give to a person with the intention of
making them his, and on the understanding that not the same things, but others of like kind and quality
shall some time be given back” (Institutes, bk 3, title 14, quoted in R. W. Lee, The Elements of Roman
Law, 4th ed. [London, 1956], 296). Lee explains that the contract created an obligation for “the
transferee (borrower) to make over to the transferor (lender) at the time expressly or impliedly agreed,
or at a reasonable time after demand, other money or goods equal in quantity and quality” (290).
115
Malinowski, Crime and Custom, 23; see also his classification of reciprocity as a legal institution,
“sanctioned not by a mere psychological motive, but by a definite social machinery of binding force”
(55).
576 䡵 JOLLY
insight into the workings of this alien system.116 Or could it be that in late nine-
teenth-century Samoa the system really was not working? A century of contact
and trade with Europeans and exposure to “that fashion of regarding money as
the means and object of existence,” which Stevenson had identified as a force both
alienating and revolutionary in its effects on colonized cultures, may well have
disrupted traditional patterns of mutuality.117 It is interesting that Stevenson’s two
specific examples of the failure of the system feature an intrusive foreign element.
A girl who worked at Vailima was given clothes by the Stevensons, only to have
them appropriated by her family; a native pastor, “a handy, busy man,” made a
down payment on a boat that was immediately taken over by his relatives, leaving
him indebted for the rest of the value of a boat he no longer owned.118 Stevenson
presents these stories as evidence of the inherent “injustice” of the system of
obligatory gift giving.119 Yet they can also be read as evidence of the strains of a
culture in transition. Each story concerns an islander moving between imported
and indigenous cultures, and each case is crucially shaped by the presence of a
foreign element (the rich European employer, the idea of cash payment and debt)
that may have distorted the system of mutualities. European notions of wages,
contract of sale, and private property may have sat uneasily with traditional Samoan
ideas about exchange, the relation between services and gifts, and the enjoyment
of goods.
If the collision of cultures in the nineteenth-century Pacific distorted an aspect
of indigenous law, reciprocity, it also brought into focus the culturally specific nature
of a European legal institution, the trust. Early in his Pacific travels, Stevenson became
convinced—it is not clear on exactly what grounds—that Polynesians were incapable
of administering trusts: “I have not yet heard of any Polynesian capable of such a
burden; honest and upright Hawaiians—one in particular, who was admired even
by the whites as an inflexible magistrate—have stumbled in the narrow path of the
trustee.”120 In his travel writing on Hawaii, not included in the early editions of
In the South Seas, Stevenson referred to this failing as a “residual trait of savage
incompetence” defined in relation to a competence—a state of higher develop-
ment—identified with a European norm.121 In this instance, Stevenson was pre-
pared to use the kind of evolutionist language that elsewhere he often regarded
either skeptically or critically.
116
117
Ibid., 12.
118
Stevenson, A Footnote to History, 15–16.
119
Ibid., 17.
120
121
Robert Louis Stevenson, The Works of Robert Louis Stevenson, Tusitala Edition, vol. 20, In the
South Seas (London, 1924), 186. Stevenson comments, “Even a [Hawaiian] judge, skilled in the
knowledge of the law and upright in its administration, was found insusceptible of those duties and
distinctions which appear so natural and come so easy to the European” (186). The “Eight Islands”
(Hawaiian) section was left out of both the 1896 (Edinburgh Edition) text of In the South Seas (on
which Rennie’s 1998 Penguin edition is based) and the first edition as an independent volume (London:
Chatto & Windus, 1900); it was included in many twentieth-century editions of Stevenson’s collected
works. As Chantal Stebbings demonstrates in The Private Trustee in Victorian England (Cambridge,
2002), the responsibilities of trusteeship did not always come easily to Europeans and, in fact, became
increasingly complex and onerous, and were increasingly perceived as such, in nineteenth-century
England.
Trusts, which became increasingly important to business, family, and public life
in nineteenth-century England and America, developed from Roman forms of
legal relationship.122 Like another Roman law concept, contract, to which it is
closely related, trusteeship involves promises. Maine argued that the habit of “at-
taching a sacredness to promises and agreements” was characteristic of “mature
civilisation” and that “the positive duty resulting from one man’s reliance on the
word of another is among the slowest conquests of advancing civilisation.”123 To
Maine, the fact that “the newest chapter in the English criminal law is one which
attempts to prescribe punishment for the frauds of Trustees” was evidence of “a
highly refined conception” of morality in the modern world.124 Stevenson similarly
wrote of trusts as legal institutions of which modern Westerners could be proud.
However, he also came to a more subtle and complex understanding of how alien
these legal forms could seem to one with a different legal heritage, as he showed
in his fable of cultural collision and mutual incomprehension, “Something in It.”
“Something in It” offers a bold interpretation of the relations among story,
place, and law, through the tale of a European missionary who is forced to ac-
knowledge the power of island laws and the supernatural sanctions attached to
them. The fable falls quite clearly into two halves, and its significance lies in the
intriguing and unexpected relation between the two. The first half attacks the
missionary’s belief that “my stories are the true ones” and that there is “nothing
in” the natives’ stories.125 When he breaks a local tapu by swimming in a forbidden
bay, the missionary finds himself in the world of the dead as described in native
stories and is forced to concede that there is “something in” those stories after
all. The implications are staggering. “But if these tales are true, I wonder what
about my tales!” he wails.126 When he meets one of his own converts among the
dead in this Polynesian underworld, the islander challenges him:
“Aha, . . . so you are here like your neighbours? And how about all your stories?”
“It seems,” said the missionary, with bursting tears, “that there was nothing in
them.”127
At this point, the fable suggests that there is no universal law or truth, only local
systems of authority; in Polynesia, therefore, the missionary must recognize the
Polynesian system of beliefs and duties.
The second half of the fable, though, confirms the continuing, coexisting validity
of the missionary’s worldview. In the underworld, he is offered “the kava of the
dead,” the one “reward of living” before being “baked in the ovens and eaten by
the eaters of the dead.”128 He refuses the drink, on the grounds that he has taken
the temperance pledge.
122
David H. Smith, Entrusted: The Moral Responsibilities of Trusteeship (Bloomington, IN, 1995), 4.
123
124
Ibid., 255.
125
Robert Louis Stevenson, “Something in It,” in South Sea Tales, 255.
126
Ibid., 256.
127
Ibid.
128
Ibid., 256, 255.
578 䡵 JOLLY
“What!” cried the convert. “Are you going to respect a taboo at a time like this? And
you were always so opposed to taboos when you were alive!”
“To other people’s,” said the missionary. “Never to my own.”
“But yours have all proved wrong,” said the convert.
“It looks like it,” said the missionary, “and I can’t help that. No reason why I
should break my word.”129
The missionary’s point of view is irrational and bigoted, and yet it redeems him.
The god Akaänga, having tried and failed to “reason” the missionary out of his
belief—so reversing a stock scene from the classic texts of Pacific evangelism, in
which the missionary uses European reason to dispel irrational Polynesian be-
liefs130—banishes the troublemaker, who returns to the world of the living. The
missionary’s stubbornness about the temperance pledge reveals that the fable is
not just about a clash of theologies, but also about differing conceptions of social
obligation. Just as Europeans often failed to understand the obligations conferred
and discharged through the Polynesian custom of gift giving, the native figures
in the fable cannot understand why the missionary should refuse the divine kava
because of a pledge given under a now discredited belief system:
“I never heard the like of this!” cried the daughter of Miru. “Pray, what do you
expect to gain?”
“That is not the point,” said the missionary. “I took this pledge for others, I am
not going to break it for myself.”131
The missionary’s pledge, made on behalf of others and for the benefit of others,
binds him to “the narrow path of the trustee.”132 His promise to abstain from
alcohol, made out of loyalty to a cause (temperance), is intended to encourage
others to make and keep the same promise. It is part of an implied contract
consisting of mutual promises (I will not drink if you will not drink).133 His pledge
also has the older sense of “becom[ing] a surety for another”; the missionary
pledges his abstinence as surety for the abstinence of others and, therefore, has a
fiduciary duty to keep his promise for the benefit of others.134 The pledge is based
on modern, Western ethical concepts of contract and trusteeship, which the mis-
129
Ibid., 256–57.
130
See, e.g., John Williams, Missionary Enterprises in the South Sea Islands (London, 1840), 18–19.
131
Stevenson, “Something in It,” 257.
132
Stevenson, In the South Seas, 122. Relations of trusteeship are always “triadic,” consisting of settlor
or entruster, trustee, and beneficiary. Although this structure is characteristic of all trusts, the missionary’s
trusteeship in “Something in It” is less like the financial trusts discussed by Stebbings and more like
the charitable trusts discussed by Smith, which require the trustee’s loyalty to and identification with
the founding idea and purpose of the organization (Smith, Entrusted, 5, 9). In “Something in It,” the
entrusting organization is the temperance society, the trustee is the missionary, and the beneficiaries
are the would-be or struggling temperance adherents. Both the cause of the entrusting organization
and the hopes of the beneficiaries have been entrusted to the missionary.
133
On the close relation between promise and contract, and mutual promises, see Charles Sweet, A
Dictionary of English Law (London, 1882), 648.
134
Oxford English Dictionary, 2nd ed., s.v. “pledge.”
sionary is unwilling to abandon, no matter how convincing the evidence for the
existence of a different belief system in the islands.
To explain his behavior the missionary argues that one must distinguish between
the moral principle that lies behind a law or legal institution and the sanction that
enforces it: “But there is such a thing as right and wrong . . . and your ovens
cannot alter that.” This way of thinking is reinforced in the “moral” appended to
the fable, which proposes that under the pressure of cross-cultural encounter,
“Sanctions and tales dislimn like mist,” and yet a locus standi can be found in the
“pin-point of the truth” within each system of laws, customs, and beliefs. The
fable ends with the partial reinstatement of the missionary’s belief system, appar-
ently dismantled in the first half.135
“Much matter of thought was in that missionary’s mind: ‘I seem to have been
misinformed upon some points,’ said he. ‘Perhaps there is not much in it, as I
supposed; but there is something in it after all. Let me be glad of that.’”136 The
referent for “it” is ambiguous here and could apply equally to the indigenous
system of stories and tapus or to the missionary’s system. The ambiguous ending
grants parity to the missionary’s and the islanders’ worldviews and leaves the tapu
and the trust as balancing legal institutions, utterly alien to each other, equally
valid, with neither able to command universal authority.
The recognition of multiple, coexisting legal cultures had major implications
for colonial administration, which was of practical concern to both Maine, in his
legislative and administrative work in British India, and Stevenson, a critic and
would-be reformer of the European government of Samoa.137 We cannot know
what Stevenson would have accomplished if he had gained an official position in
Samoa, but it seems likely that he would have worked to somewhat different ends
from those pursued by Maine in India.138 Maine saw his role as that of cautiously,
and with a due sense of history and locality, bringing “progressive” forces to bear
on India’s traditional law.139 Stevenson’s advocacy of the continuing validity of
indigenous legal systems, combined with his distrust of the “progressive” nations’
effects on Pacific societies, would probably have made him less interested in mod-
ernizing and more committed to preserving the legal institutions he observed and
analyzed in the Pacific.
The folly and mismanagement exhibited by the European administration of
Samoa during the years of Stevenson’s residence helped determine these attitudes,
135
Stevenson, “Something in It,” 257.
136
Ibid.
137
On Maine’s interest in applying the comparative method to problems of Indian administration,
see Collini, Winch, and Burrow, “The Clue to the Maze,” 216. On the general importance of com-
parative legal study for imperial government, see “Statement of the Objects of the Society,” vii. Later,
Malinowski advocated a close relation between comparative jurisprudence, legal anthropology, and
colonial administration; see his introduction to Hogbin, Law and Order in Polynesia, xviii, xxix.
138
Stevenson expressed his willingness to become British consul (a position of significance under the
Berlin Treaty’s arrangements for the government of Samoa) and may also have been interested in the
position of chief justice (Letters 7:310–11n, 386–87n, 460n).
139
On Maine’s career in India, see A. C. Lyall’s obituary article, “Sir Henry Maine,” Law Quarterly
Review 14 (1888): 129–35. According to Lyall, Maine believed that British legislation should not
artificially preserve decaying Indian institutions or give fixed form to usages that would naturally evolve
over time, nor should it introduce abrupt changes for which the country was not ready. See also Stokes,
English Utilitarians, 313, 315.
580 䡵 JOLLY
but so did Stevenson’s attentive observation of Pacific legal cultures. Comparative

jurisprudence is a strong element in In the South Seas, A Footnote to History, and
“Something in It,” showing how important Stevenson’s law studies and his con-
tinuing interest in legal ideas were to his intellectual engagement with Pacific
societies. Studying Pacific law from a comparative perspective helped Stevenson
to achieve a better understanding not only of the society in which he had now
chosen to live but also of the “Roman” legacy that had shaped his modern mind.
In comparing cultures and subjectivities, he placed law above other powerful mark-
ers of difference such as race or religion and made legal concepts central to his
anthropological studies.
Analysis of Stevenson’s comparative jurisprudence in the light of Maine’s work
reveals the distinctive ways in which legal thinking shaped Stevenson’s encounters
with Pacific societies. As well as constituting a significant episode in the history
of anthropology, those encounters also suggest the importance of law in post-
colonial criticism generally. Both Maine and Stevenson thought and wrote within
the context of late nineteenth-century imperialism, and their anthropological con-
cerns interacted with their political observations. Like Maine, Stevenson saw that
relations between colonizer and colonized were built upon and shaped by the
legal conceptions each party brought to the colonial engagement. His writings on
the Pacific, like Maine’s on India, suggest that the dynamics of a colonial situation
cannot be understood without an appreciation of any clash of legal cultures in-
herent in that situation.

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Robert Louis Stevenson, Henry Maine, and the Anthropology of Comparative Law

Author(s): Roslyn Jolly

Journal of British Studies 45 (July 2006): 556–580

study of Samoan politics, A Footnote to History (1892), Stevenson frequently or-

I. ROMAN LAW AND ANTHROPOLOGICAL INQUIRY

Stevenson’s account of his arrival in the Marquesas is one of many instances in

II. STEVENSON AND MAINE

Despite the theoretical prestige of the Austin-Bentham model of positive law

opment.87 Furthermore, the very notion that the government of a Micronesian

nineteenth-century anthropology: the “problem of human unity.”94 Despite the

III. STEVENSON’S COMPARATIVE JURISPRUDENCE

the nature of that institution is much misunderstood in Europe. It is taken usually

but so did Stevenson’s attentive observation of Pacific legal cultures. Comparative

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