Here are some dates. Herbert Spencer, SOCIAL STATICS (1851) Charles Darwin, ON THE ORIGIN OF SPECIES (1859) Henry Maine ANCIENT LAW (1861) Henry Maine, VILLAGE COMMUNITIES (1871) Charles Darwin, THE DESCENT OF MAN (1871) Joseph Fisher, THE HISTORY OF LANDHOLDING (1877) Herbert Spencer, THE DATA OF ETHICS (1879) Social Statics , the one specific ally cited (and rejected as a constitutional authority) by Oliver Wendell Holmes in the Lochner case, was early Spencer, and preceded the great Darwinian controversy. Maine did develop his legal theories subsequent to Darwin, but there is no biologism in them. Maine believed that human societies have passed through predictable stages, and that the overall direction of progress in which the world was engaged in the 19th century was a move away from status toward contract. A movement away from inborn identity to voluntary choices and the acceptance of their consequences. The later Spencer may well owe a lot to Maine (whose picture is abov