A PROJECT

ON

HISTORICAL SCHOOL: SIR HENRY MAINE

[Submitted as a partial fulfilment of the requirements

for B.A.L.L.B. (Hons.) 5 Year Integrated Course]

Session: - 2019-20

Submitted On:-

25/09/2019

Submitted By: - Submitted To: -

RAVI PRAKASH ARYA DEEKSHA SHARMA
ROLL NO:- 45 ASSISTANT
PROFESSOR UFYLC
SEMESTER:- V, A

University Five Year Law College,

University of Rajasthan,

Jaipur

1
 CERTIFICATE

DEEKSHA SHARMA DATE: 25/09/2019

ASSISTANT PROFESSOR
Faculty
University Five Year Law College
University of Rajasthan, Jaipur.

This is to certify that Mr RAVI PRAKASH ARYA student of semester V, sec.A has carried
out project titled HISTORICAL SCHOOL: SIR HENRY MAINE under my supervision.
It is an investigation report of a minor research project. The student has completed research
work in stipulated time and according to the norms prescribed for the purpose.

Supervisor

2
 DECLARATION OF ORIGINALITY

I, RAVI PRAKASH ARYA, hereby declare that this project titled “HISTORICAL
SCHOOL: SIR HENRY MAINE” is based on the original research work carried out by me
under the guidance and supervision of “DEEKSHA SHARMA”.

The interpretations put forth are based on my reading and understanding of the original texts.
The books, articles, websites etc. which have been relied upon by me have been duly
acknowledged at the respective places in text.

For the present project which I am submitting to the university, no degree or diploma has
been conferred on me before, either in this or any other university.

Signature

DATE:- 25/09/2019 RAVI PRAKASH

ARYA
ROLLNO.:- 45
SEMESTER:- V, A

3
 ACKNOWLEDGEMENT

I have written this project “HISTORICAL SCHOOL: SIR HENRY MAINE” under the
supervision of DEEKSHA SHARMA Her valuable suggestions herein have not only helped
me immensely in making this project but also in developing an analytical approach to this
work.

I would like to express my sense of gratitude for Director, Dr.SanjulaThanvi and Deputy
Directors Mr. Manoj Meena& Mr. Abhishek Tiwari for constant encouragement at every
step.

I am extremely grateful to the library staff and the librarian of the college for the support and

Cooperation extended by them from time to time.

RAVI PRAKASH ARYA

4
 TABLE OF CONTENT

CERTIFICATE 2

DECLARATION OF ORIGINALITY 3

ACKNOWLEDGEMENT 4

RESEARCH ETHODOLOGY 6

CHAPTER 1

Introduction 7

CHAPTER 2

Nature 9

Static And Progressive Society 10

CHAPTER 3

Criticism of Maine 11

CONCLUSION 12

BIBLIOGRAPHY 13

5
 RESEARCH METHODOLGY

The researcher has used doctrinal method for preparing this project and relies only upon the
secondary source of data to prepare this project

Aim of study:
To study about the theory and study of law according to sir Henry Maine

6
 CHAPTER-1
Introduction

Jurisprudence is the theory and study of law. It studies the origin and concept of law. Law has
a very complex concept. Its understanding varies from people to people. Everyone has a
different understanding of the law. For example, a law student and lawyer understand the law
as a solution of every dispute. An ordinary citizen understands the purpose of the law is to
punish them. Historical school of Jurisprudence argued that the law is the exaggerative form
of social custom, economic needs, conventions religious principles, and relations of the
people with society.

The historical school of jurisprudence reveals the belief that history is the foundation of the
knowledge of the contemporary era. Two jurists who researched extensively in this area –
Friedrich Carl Von Savigny (1799 – 1861) and Sir Henry Maine (1822-1888). We have
discussed the jurist Friedrich Carl Von Savigny (1799 – 1861) in our last article. Now in this
article, we will discuss only Sir Henry Maine and his theory in the historical law school.
The nineteenth-century evolutionism in legal theory set initially by Savigny was nurtured
with the publication of Ancient Law in 1861 by Sir Henry Maine. Sir Henry Maine sets the
set the stage for anthropologists and sociologists like Durkheim, Morgan, Sorokin,
Zimmerman and Max Weber who reconstructed their typologies of society on the approach
and method of Sir Henry Maine. These varying typologies of society are essentially
indicators of historical growth as to how the communities evolved.
Sir Henry Maine came to a conclusion through his comparative study that the development
of law and other social institutions in almost all the ancient societies related to Hindu,
Roman, Anglo-Saxon, Hebrew and Germanic communities were more or less the same as a
palace is.

7
Sir Henry Maine

Sir Henry Maine was the founder of the English Historical School of Law. Savigny’s views
of Historicalschool was carried forward in England by Sir Henry Maine.

Major Works by Sir Henry Maine. The first work of Maine ‘Ancient Law’ was published in
1861. He alsowrote Village Communities (1871). Early History of Institutions (1875).
Dissertations of Early Law andCustom (1883).

Maine studied the Indian legal system deeply as he was law member in the Council of the
Governor–General of India b/w 1861 to 1869. Maine’s ideas were incorporated by the best
things in the theories ofSavigny and Montesquieu and he avoided what was abstract and
unreal Romanticism1

Maine favored legislation and codification of law, unlike Savigny.

1
https://www.lawnotes4u.in/2019/05/theory-of-law-by-sir-henry-maine-historical-school.html?m=1

8
 CHAPTER-2

Nature

Maine describes the development of law in four stages:

1. Devine Law
Rulers are believed to be acting under divine inspiration. And the laws are made on
the commands ofthe rulers. For example, Themistes of ancient Greek. The judgment
of the king was considered to be thejudgment of God or some divine body. King was
merely an executor of judgments of God, not the law-maker.

2. Customary Law

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

3. Priestly Class as a sole repository of customary Law

The knowledge & administration of customs goes into the hands of a minority, Due to the
weakening ofthe lawmaking power of the original law-makers like Priests the knowledge of
customs goes into thehands of a minority class or ordinary class. And the ruler is superseded
by a minority who obtain controlover the law.

4. Codification

In the fourth and last stage, the law is codified and promulgated.

9
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 progressing after the fourth stage of development of law are
Progressive Societies.They develop their laws with the help of these instruments:

Legal Fiction

Legal Fiction changes the law according to the needs of the society without making any
change in theletters 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 ondistinct principles”. Equity helps to remove rigidity and injustice.

Legislation

The legislation is the most effective and desirable method of legal change. Laws will be
enacted andbecame operative officially2

2
https://blog-ipleaders-in.cdn.ampproject.org/v/s/blog.ipleaders.in/historical-school-of-
jurisprudence/amp/?usqp=mq331AQCKAE%3D&amp_js_v=0.1#aoh=15692487188761&referrer=https%3A%
2F%2Fwww.google.com&amp_tf=From%20%251%24s&ampshare=https%3A%2F%2Fblog.ipleaders.in%2Fhi
storical-school-of-jurisprudence%2F

10
 CHAPTER-3

Criticism of Maine

Baine is criticied for oversimplifying the nature and structure of early society for the
following reasonssociety does not show an invariable pattern of movement from the three
stage development of lawfrom personal commands and judgments of patriarchal rulers
through law as custom upheld byjudgments to law as code. The so!called rigidity of the law
has repeatedly be challenged contemporaryanthropologists who are of the opinion that
primitive peoples were adaptable and their laws flexible.

11
 CONCLUSION

Historical School of Jurisprudence describes the origin of law. This school argues that the
law was foundnot made. The main source of law is Kings Judgment, Customs and habits.
Jurists like Montesquieu,Savigny, Sir Henry Maine, and Georg Friedrich Puchta are the
supporter of the Historical School of Jurisprudence. According to Sir Henry Maine,
Montesquieu was the first jurist of Historical school. Sir Henry Maine was the jurist of
English Historical School. He was more logical and accept the concept of Codification and
legislation.

Savigny was the father of Historical school. He argued that Law is like language and have a
national character. Law is not universal. While Puchta improved the ideas of Savigny and
argued that both

12
 BIBLIOGRAPHY

 Mahajan,V.D., Jurisprudence and Legal Theory, Eastern Book, 5th Edition, 2010
 DR, Avtar Singh , Introduction to jurisprudence, lexis nexis, 3 rd Edition 2011

 https://www.lawnotes4u.in/2019/05/theory-of-law-by-sir-henry-maine-historical-
school.html?m=1

13