THEORY OF LAW HENRY MAINE AND HIS CONTRIBUTION

The historical school follows the concept of man-made laws. ‘Law is formulated
for the people and by the people’ means that the law should be according to the
changing needs of the people. And everyone understand their own need better
than anyone else.
Sir Henry Maine was the founder of the English Historical School of Law.
Savigny’s, father of the Historical schools views of Historical school was carried
forward in England by Sir Henry Maine. Maine made very valuable contributions
to legal philosophy by way of historic comparative method.

 ‘Ancient Law’,Village Communities ,Early History of Institutions

Dissertations of Early Law and Custom

Theory of evolution of law – Maine made a comparative study of legal

institutions of various communities and laid down a theory of evolution of
law. Maine describes the development of law in four stages:

 First stage-law made by the ruler under divine inspiration

In the beginning laws are made on the commands of the rulers,
believed to be acting under divine inspiration as the inspiration of
Themistes in the Homeric poems.

Second stage-commands crystallise into customary law

Then the commands of King converted into customary law. The custom prevails
in the ruler or majority class. Customs seems to have succeeded to the right
and authorities of the king.

 Third stage-knowledge of law in the hand of priests

The knowledge & administration of customs goes into the hands of a
minority, usually of a religious nature, due to the weakening of the
lawmaking power of the original law-makers. And the ruler is
superseded by a minority who obtain control over the law.
  Fourth stage-codification
Era of codes. Now law is promulgated in the form of a code, as Solon’s
Attic Code, or the Twelve Tables in Rome.

Static and Progressive Society

Static societies

Societies which does not progress and develop their legal structure after the
fourth stage of development of law are Static society. Static societies don’t
progress beyond the era of codes.

Progressive Society

Societies which go on developing their law after the fourth stage of

development of law are Progressive. They develop their laws with the help of
these instruments:

 Legal Fiction
Legal Fiction change the law according to the changing needs of the
society without making any change in the letters of the law. Legal
fiction harmonizes the legal order but made the law difficult to
understand.

 Equity
According to Maine, “Equity is a body of rules existing by the side of
the original civil law & founded on distinct principles”. Equity consists of
those principles which are considered to be invested with a higher
sacredness than those of positive law. It is used to modify the rigour of
law.

Legislation
The legislation is the most effective and desirable method of legal change. Laws
will be enacted and became operative officially. It is the most direct and
systematic method of lae making.
STATUS DISINTEGRATED:
As to the legal conditions prevailing at the end of general course of evolution,
i.e. of static societies, Maine calls them ‘Status’. The rights and liabilities of a
member of a community depend on his belonging to a particular group. For
example the right & duties of a member of a family depend on his being ‘pater
familias’ or a dependent. In progressive societies the idea of status is
disintegrated. There is ‘gradual dissolution of family dependency & growth of
individual obligation comes at its place. The individual is steadily substituted for
the family, as the unit of which civil laws take account.
GROWTH OF THE IDEA OF CONTRACT:
Gradually the institution of pater familas withers away. Slave gets more and
more freedom, and now rights and obligations depend on contract/free
negotiations of the individuals. After tracing this course of dev Maine propounds
his thesis –‘The mvmt of preogrssive socieities has hitherto been a movement
from status to contratc’

Maines contribution

Improved upon theory of historical school.

Theory = very balanced view of history. Savignty explained relation between
community & law but Maine went further & pointed out the link between dev of
both & purged out many exaggerations which Savigny had made.

Comparative study – importance of legislation – balanced view

Most hist jurists of the continent confined their studies only to roman law, but
Maine studied the legal systems of various communities & by their analysis laid
down a comprehensive theory of dev of law.Differing from Savigny, Maine
recognized legislaton as a very potent source of law. He also avoided excesses
of philo school of Ger. He studied the legal hist to mostly understand the past
and not to determine future course & standards.

Benefit to Modern ANTHropologists

Though many of Maine’s statements about primitive societies & the course of
dev of ancient law have been falsified by mod researches, modern anthro. Have
had the advantage of being able to profit from the researches of fellow workers
in many directions

Inspired many later jurists

Theory preaches a belief in progress and it contained seeds of socio approach.
Jurists Maitland, Vinogradoff & Bryce were inspired by Maine & they applied his
hist & comp method to study of law.

Criticism of Maine
Theory no longer holds good :Indvidual freedom of contract curtailed
It was realized that the idea of freedom of contract between powerful capitalist
& starving workman was – ridiculous & hollow. Orgns to protect workmen came
into existence. Employers too frmed their associatios. Group bargaining came in
place of individuals freedom of contract.

Changes in the concept of functions of state

Great changes…These have caused great interference into activities of individual
by the state. The contratcs have been standardized –water, electricity.
Indifivuals cant change terms of these contratcs. Parties eenter these contartc
as members of social class, and not as individuals.
No place for the theory in totalitarian states –Maine himself qualified his theory
Tot states, there has been a strong shift to status again. No contract is allowed
which is in any way not in consonance with the state plan. Thus socieities have
not remained progressive, but hv become retrogressive.

CUSTOM AS SOURCE OF LAW, ESSENTIALS OF VALID

CUSTOM, TYPES OF CUSTOMS
Custom is a habitual course of conduct observed uniformly and voluntarily by the people. Custom
occupies an important place in regulation of human conduct in almost all the societies. In fact, it is one
of the oldest sources of law-making . When people find any act to be good and beneficial, apt and
agreeable to their nature and disposition, they use and practice it from time to time, and 3 it is by
frequent use and multiplication of this act that the custom is made. Custom is a rule of conduct which is
spontaneously observed by the society as a tradition, habit and usage, but not in pursuance of law.

Custom has been defined by various jurists as per their notion, understanding, philosophy, views and
opinion.
Austin: - According to Austin, “custom is a rule of conduct which the governed observe spontaneously
and not in a pursuance of law set by a political superior”.
Harprasad v. Shivdayal. In this case the judicial committee of the Privy Council observed, custom as a
rule which in a particular family or in a particular district or in a particular sect, class or tribe, has from
long usage obtained the force of a law

Place of custom as source of law can elucidated wrt (1)Recognition of customs reasons & (2)Position
of customs in various legal systems

Reason for recognition of customs:

Salmond’s reasons
1) “custom is the embodiment of those principles which have commended themselves to the national
conscience as principles of justice and public utility” The national conscience may well be accepted by
courts a an authoritative guide, and of this conscience national custom is the external & visible sign.
2)The existence of an established usage is the basis of a rational expectation of its continuance in the
future. If the society has for a long time continued a practice which determined their rights & liabikities,
and aroused expectation, and it is not opposed to public or reason, there is no wisdom in disturbing or
removing it.

Position of customs in various legal systems:

Roman Law
Played a very imp part before the code. Post promulgation of code Roman law was less sympathetic to
customs. Later on customs recognized in –susbstantive & procedural law. Assigned only a secondary
position compared to legislation of imperial regime. Tests for recog a custom as law- reasonableness &
antiquity

Hindu Law
Most potent force in moulding hindu law. Variances in laws in smritis were due to their incorporating
local customs of places where they were written. Lordships in the privy council observed that in Hindu
law “the clear proof of usage will outweigh the written text of the law”

Mohammedan Law
Genus of Mohd Law is considered to be hostile to customs. But cud not free itself from them. On the
basis of customs that sunnis interpreted many provisions of the law.In india many sects of
Mohammedans in many matters are governed by local customary law.

English Law
Very imp role in moulding.Chief Justice Coke –“customs as one of the main triangles of laws of England”.
Essentials of Valid Custom
The grounds of valid custom as follows.
Antiquity

The primary trial of a legitimate custom is that it must be prevalent from time
immemorial. It must be old or old and must not be of the ongoing
source. Manu stated, “Immemorial custom is supernatural law”. Days of ancient
times imply in the Civil law in the frameworks inferred consequently and initially
implied in England and additional time is so remote that no living man can
recollect it or give proof concerning it.

In England, a custom must be at the time of the rule of Richard I King of

England”. That is in England the time period for a valid custom is 1189, for a
custom to be viewed as substantial. The year 1189, was the main year of the rule
of Richard I. In any case, the English principle of ‘immemorial inception‘ is not
followed in India. In Gokul Chand v. Parvin Kumari, the Supreme Court ruled
and denied to measure the validity of Custom from 1189 AD but stated explicitly
that it must be of ancient and historical times.

Reasonability/No Arbitrariness

The second significant legal trial of a legitimate custom is that it must

be reasonable. It must not be unreasonable. It must be helpful and
advantageous to the general public. On the off chance that any parties face
difficulties in a custom, the parties must fulfil and convince the court that
a particular custom is unreasonable. This means the weight of evidence lies
upon the individual who challenges the custom. To find out the reasonableness
of custom it must be followed back to the season of its inception. The
unreasonableness of custom must be great to the point that its authorization
results in more prominent damage than if there were no custom by any means.

A custom ought to be viewed as adequately reasonable when it isn’t against

the fundamental guideline of profound quality of the law of the state wherein
it exists, standards of equity, morality and arbitrariness. It must not be
generally rash, unforgiving or poorly arranged.

The Bombay High Court, in Narayan v. Living, held that a custom allowing a
lady to forsake her better half at her pleasure and marry again without mutual
agreement to be shameless and arbitrary on one spouse. The topic of
reasonability is one of law for the court. The standard which the courts apply has
been characterized by the Divisional Court of the King’s Bench in Produce
Brokers co. vs Olympia oil and coke co., considered grounds of valid customs
as “reasonable and legitimate and for example, sensible, genuine and
impartial men”.

Continuance

A custom must be followed with consistency and in continuity from its

inception. If it is proved otherwise that there were a break and a pause by a
particular community in the following the custom in a court of law, then the court
may have the discretion to get the custom annulled. Therefore a custom must be
followed in consistency and continuity. In Hampton v. Hono, it was ruled that if
a custom is not practised for a significant amount of time, then it would cease
to exist as a valid custom.

Certainty

The most important test of a valid and essential custom is that a particular custom
must be specific and less from ambiguity. If a particular custom is ambiguous,
vague and not understandable by the parties then the particular custom will be
declared as null and void by the court, the same was ruled by Privy Council
in Wilson vs. Wilson.

Not opposed to Public Policy

Another test for the legitimacy of custom is that it ought not to be against public
policy. This test might be incorporated into the trial of reasonability, as it is
extensive term and it might incorporate public policy also. In Buldano vs
Fasir, a custom, where a woman was allowed to remarry again during the lifetime
of her husband was held to null and void by the court as it was against public
policy.

Juridical Nature

A custom must be of a juridical nature. A custom must refer to legal relations.

A mere voluntary practice not conceived of as being based on any rule of right or
obligation does not amount to a legal custom.

No analogical deductions

Custom can’t be stretched out by analogy. It must be set up inductively, not

deductively and it can’t be built up by earlier techniques. It can’t involve
hypothesis yet should dependably involve reality. In like manner, one custom
can’t be inferred and deduced from another custom. Custom in contravention
to fundamental rights will be declared as null and void.

DELEGATED LEGISLATION-ADV & DISADV

Black’s Law Dictionary defines ‘Delegation’ as ‘the act of entrusting another with authority or
empowering another to act as an agent or representative
The Principle of Delegated Legislation has been defined as:
“This principle which has been well-established is that the legislature must lay down the
guidelines, the principles of policy for the authority to whom power to make subordinate
legislation is entrusted.” Delegation of powers means the powers passed on by the higher
authority to the lower authority to make laws. Delegated legislation means the powers given by the
legislature to the executive or administration to enact certain law
M.P. Jain, “the term ‘delegated legislation’ is used in two senses: (a) exercise by a subordinate
agency of the legislative power delegated to it by the legislature, or (b) the subsidiary rules
themselves which are made by the subordinate authority in pursuance of the power conferred on it
by the legislature .”

Delegated legislation is law made by some person or body other than parliament,
but with the authority of parliament. What the Government has often done,
therefore, is to pass an ‘enabling Act setting up the main framework of the
reform on which it has decided, and then empowering some subordinate body
,often a Minister to enact the detailed rules necessary to complete the scheme.
An example of enabling Acts includes the Criminal justice Act 2003 which gives
the Secretary of State the power to make delegated legislation in several areas.
One of these powers enables code of practice to be created for the use of
conditional cautions. A conditional caution is used instead of taking an offender
to court.

3 TYPES
1) Orders in Council – made by Crown and Privy Council.
2) Statutory instruments – made by Government Ministers.
3) Bylaws – made by local authorities and public corporations.

Advantages

1. Delegated Legislation Saves Time of the Parliament:

The types of activities that are now falling under the government
sphere are so complex and voluminous that the Legislature has neither
the time nor the capacity to make laws for their regulation. Therefore,
it delegates some of its powers to the executive, in order to avoid being
bogged down in the burden of details.
ADVERTISEMENTS:

2. Delegated Legislation Makes for Flexibility:

Statutes create rigidity in administration, but administrative
legislation is more adaptable to changing circumstances. It is specially
useful in those branches of administration which are liable to
occasional changes and where repid technical developments are taking
place almost daily.

3. Emergencies Met:
It is better to clothe the administrative agencies with the necessary
discretion to deal with the possible contingencies which may arise in
the application of law since the legislature is unable to foresee and
provide for all them.

4. Delegated Legislation can be easily done in Consultation

with the Interests Affected:
Prior consultation with the interests likely to be affected is necessary
to make legislation affective. The drafting of the rules may and often
does permit conference between the government and the vested
interests affected and consequently results in a broad agreement
which tends towards voluntary compliance.

5. Average Legislator:
An average legislator is a layman. He is not acquainted with the
complexities of modern legislation. Hence he passes the bills in
skeleton form and leaves the details to be filled up by the executive.

6. Impact of Science and Technology:

Due to impact of science and technology the functions of the modem
state have got multiplied. Thus the powers of the legislature have also
considerably enhanced. It can hardly cope with powers which are even
on the increase. Hence it has delegated power of law making to the
executive.

7. New Standards to be set up:

Growth of delegated legislation can also be attributed to the need of
setting up of new standards in the social interest. To ensure national
minimum of health education, housing and sanitation to everybody,
the expert knowledge is required.

8. Administrative Legislation Provides for Expert

Legislation:
The rules are drafted by experts in the appropriate departments who
are familiar with the actual conditions. The details can be much better
worked by them than by the lay members of the legislature.

DISADVANTAGES

Violates principle of separation of powers

it takes law making away from the democratically elected House of Commons.
Instead, power to make law is given to unelected civil servants and experts
working under the supervision of a Government minister.

Accountability issue is the problem that the authority vested in Parliament to

make law is delegated away from Parliament, possibly through a number of
‘layers’, for example, to a Government Minister and to a department and then
possibly again to a group of experts.

accountability issue is the problem of adequate scrutiny. The detailed, technical

and specific nature of much-delegated legislation means that, on the whole,
Members of Parliament do not have the expertise to consider proposed
legislation effectively.
Apparent Lack of Debate
The apparent lack of debate and publicity that should be associated with a
form of secondary legislation has also been noticeable. The enabling Act
should have been subject for some public debate as well as consultation
delegated by the legislation with its very nature to be a lot wordy and more
complex meaning which will not be that easy to be understood or be
accessible by the people.
large volume of delegated legislation produces about 3000 statutory instruments
each year which means that it is very difficult for Members of Parliament, let
alone the general public, to keep up to date with the present law. This is
exacerbated by the fact that delegated legislation is made in private