Justice & Law Quote by Henry James Sumner Maine

Maine’s line lands like an archivist’s raised eyebrow: the real spectacle isn’t “customary law” itself, but the fact that it’s guarded. By calling that epoch “very remarkable,” he’s quietly inviting suspicion toward the social machinery that turns habits into authority. Custom becomes law not because it’s morally superior, but because a designated class gets to stabilize it, interpret it, and, crucially, keep it out of everyone else’s hands.

The intent is classic Maine: to map legal evolution as a shift from status to contract, from inherited roles to chosen obligations. In that story, customary law represents an earlier stage where rules are embedded in tradition and enforced through social hierarchy rather than explicit legislation. The “privileged order” is doing double duty in the sentence. It sounds like a neutral description of expertise, but it also signals monopoly: a small group acts as both memory and gatekeeper, deciding which practices count as binding and which are dismissed as mere folklore.

Subtext: law is never just a set of rules; it’s a custody arrangement. Who holds it determines what it becomes. Maine is writing in the 19th-century context of comparative jurisprudence and empire, when British intellectuals were cataloging “traditional” legal systems abroad while also reflecting on England’s own legal past. The phrase “custody” makes tradition feel less like organic community life and more like property held in trust by elites - a subtle preview of modern debates about legal interpretation, professionalization, and the democratic deficit baked into “expert” rule.