Observations on Sir Henry Sumner Maine's Popular Government: the Preface

In all thought, our basic assumptions are crucial to the outcome. If the premises of a syllogism are not true, it does not matter if the terms are clear and definite and the rules of logic are followed--the conclusion will be false (unless it can be proven true by another valid argument with true premises, etc.). If the foundation of our thought is weak or lacking, the entirety of our thought will be weak and lacking as well.

This is the complaint Sir Henry Sumner Maine has with the political philosophers who preceded him. In his attempt to study historical law and government, he "found the path obstructed by a number of a priori theories which . . . satisfied curiosity as to the Past and paralyzed speculation as to the Future" (21).* These theories were those that postulated a hypothetical "state of nature" (e.g. John Locke's Second Treatise of Government) and "Rights and Duties appropriate to the natural condition" (21). Maine finds these ideas to rest on a "very slender philosophical foundation," though he is willing to admit that they have had some good consequences, such as beneficial legal reform (22). However, these theories had given a "false bias to all historical inquiry" into society and law (22).

As suggested by the title of Maine's work, this bias is seen especially in the modern ideas surrounding the theory of "popular government." He divides the European notions of popular government into three categories: (1) those derived from practical observation, (2) those reproducing portions of the British and American constitutions, and (3) those derived from the weakly-supported theory of the "state of nature" (22-23). Some of the ideas found in the final category include the "inherent superiority" of democracy and its inevitable progress (23). Maine also points out the hypocrisy of some of democracy's adherents who promise that it will bring great blessings, and yet if democracy fails to live up to their predictions (or even bring disaster), they would not have the blame laid at democracy's feet (23). (I find this very similar to the argument of the modern progressive who, in order to avoid addressing the historical experience with Stalin and Mao, argues that communism has never been truly attempted.)

But Sir Maine is not satisfied with a priori theorizing about popular government. While those such as Bentham had few historical facts about modern democracy available to them in their studies, in the latter half of the 19th century Maine sees a large body of historical fact available to him to assist in his analysis of this political theory (24). Popular government had been introduced into "Spanish America" and most of Continental Europe since 1815, the British Constitution had been "modifying itself . . . rapid[ly]", and the Americans had adopted a Federal Constitution which had (so far) "provided against the infirmities of popular government" (24).

Maine concludes his preface by giving a thesis statement or summary for each of the four essays that make up the remainder of his text. In the first essay, "Prospects of Popular Government," he argues that modern democracy has shown itself "extremely fragile" (25). "The Nature of Democracy" contends that democracy is the most difficult form of government (25). In "Age of Progress," Maine argues that constant change (which is assumed by the popular government theory) is likely to lead to disappointment or disaster (25). [Here I am reminded of two Proverbs: "Do not associate with those given to change" (24:21 NKJV) and "Because of the transgression of a land, many are its princes" (28:2 NKJV).] However, the fourth essay, "The Constitution of the United States," ends on a more positive note for popular government, as Maine notes that the Constitution has mitigated or even overcome several of the weaknesses inherent in popular government (26).

A few concluding thoughts:  First, I appreciate Maine's desire to look at the cold, hard facts of democracy. In the theoretical realm, it is possible to make any political structure attractive. For example, communism looks incredibly noble on paper. All citizens working together, each "comrade" contributing what he is able, and every person receiving what he needs. What's not to love? But we know from history that communism's application turns out very differently. And while a pragmatic consequentialism is not the standard we should apply, it is important that we consider the results of our proposals, especially when they affect the populations of entire countries. 

Second, contemporary thought in the West tends to track with the thought of the democratic thinkers of Maine's time, in that the superiority and even moral necessity of democracy is generally assumed. [While these assumptions may logically derive from the theoretical "state of nature," that theory in itself is an assumption which is likely false. The biblical account (which I accept as true) certainly does not give credence to this theory. Instead, we see from very early on a patriarchal system of government in which the eldest male has the primary authority. After pure patriarchy is abandoned, monarchy appears to be the norm.] When popular movements break out in historically non-democratic parts of the world, the American government has often quickly declared its support for those movements, without considering whether those movements' goals are truly superior to those of the established governments which they seek to dissolve. Perhaps the best recent example is the so-called Arab Spring. Many in the media and government spoke out in favor of the protestors/rebels (and even offered them material support) without considering (or perhaps, even in spite of) their desire to instate Islamic fundamentalism (which does not have a positive track record for "human rights"). Democracy has become a secular religion, even becoming a (purported) justification for recent military interventions.
 
Finally, I look forward especially to Maine's analysis of the U.S. Constitution in the fourth essay. I do agree that the governmental structure set forth in the Constitution is superior to direct democracy, as it is technically a republic, but I am not convinced that it is ultimately a feasible design. Of course, some of the original safeguards placed in the Constitution (such as the election of senators by the state legislatures, not the common populace) have been removed by amendment, so perhaps the blame does not rest squarely upon the original Constitution. On the other hand, the original document explicitly provided for an amendment process, thus allowing the safeguards to be removed. I would certainly argue that universal suffrage has damaged the republic. The decline of the American federal republic has also been aided by a tendency to read broadly the parts that advance one's own agenda but narrowly or even dismissively any  portion which opposes that same agenda. (But this is a common problem in all hermeneutics, not just in constitutional interpretation.)

I will be writing about each of Maine's four essays as I read them in the near future. Please check back regularly to read those and other essays on a variety of topics.

*All page citations are to Maine, Henry Sumner. Popular Government. 1st ed. Indianapolis: Liberty Classics, 1976. Print.