KHALIDA KHAN

B.A.LL.B.(H)
4th SEMESTER
ROLL NO: 31
JURISPRUDENCE-I

TOPIC: CRITICAL
ANALYSIS OF CONCEPT
OF HENRY MAINE

SUBMITTED TO: PROF.GAURAV GUPTA

Acknowledgement
I would like to express my special thanks of gratitude to my teacher Prof. Gaurav Gupta who
gave me the golden opportunity to do this project on the topic Critical Analysis of The Concept
of Henry Maine which also helped me in doing a lot of Research and I came to know about so
many new things I am really thankful.
Introduction: -

Historical School of Jurisprudence, viewed law as a legacy of the past, a product of each individual
community or people of nation impeding any reflecting its peculiarities, unique customs, special
habits and other peculiarities which are deeply rooted in its heritage and culture Accordingly,
historical jurists regard law a biological growth, an evolution any phenomena and not as an
arbitrary fanciful and artificial creation.

(i) Montesquieu (1689 -1755)

Sir Henry Maine observed, that Montesquieu was the first jurist who followed the historical
method. He made researches into the institutions and laws of various societies and come to the
conclusion that" Laws are the creation of climate, local situations, accident or imposture" Though
he did not lay any principles as to relation between the law and society, yet his suggestions that
the law should answer the needs of the time and place was a step in the direction of new thinking.
His famous work is the spirit of law" approved in 1948.

(ii) Burke1 (1929.1797):

He stressed the importance of tradition and gradual growth of law against wreck less shifting of
political order as advocated by French revolution Aries.

(iii) Hugo (1583.1645)

The view of Hugo is that law like language and manners of people forms itself and develops as
situated to the circumstances. The essence of law is its acceptance, regulation and observance by
the people.

(iv) F.K. Von Savigny2 (1779.1861):

He is the founder of Historical school. To him law is a product of time, the germs of which like
the germs of state, exists in the nature of men as being made for society and which develops from

1 Tripathi, V.N.M. Jurisprudence, 1993 P.19 C.LA. Allahabad.

2 Mahajan, V.D. Jurisprudence and legal theory, 5th edn. P.560-61 Eastern Book Co. Lalbag Lucknow.
this germ in various forms according to the environing influences which play upon it. He observed
that the law is prehistoric. In all societies it is found already established like their language
manners, and political organization~ Law languages customs and government have no existence
but one force and power in people According to Savigny, 3 Law is a rule of human action and
conduct sanctioned by national usage. It is always based on popular support and approval. He held
that all early laws were customary and the function of legislation is merely to supplement and
redefine customs. Customary law is a law as an expression of the general consciousness of right
and not by virtue of sanction of legislature. To him law like language, grows with the growth and
strengthens with the strength of people and finally dies away as the nation loses its nationality.
Law is henceforth more artificial and complex, since it has a twofold life as a part of the aggregate
existence of the community which it does not cease to be and secondly as a district branch of
knowledge in the hands of jurists. According to him the nature of any particular system of law was
reflection of the spirit of the people who evolved it. This was later characterized as Volksgeist by
Puchta, a disciple of Savigny. Savigny thesis has been criticized on many grounds national
consciousness alone cannot make law for so also every custom has not the force of law.

Volksgeist is not only the source of law similarly customs not always based on popular
consciousness. As to contribution we may said that he interpreted jurisprudence and law in terms
of peoples will Volksgeist and this sowed the seeds of modem anthropological and sociological
law in relation to society comparative is another development which has emerged as a result of
saving's work.

(v) Georg Friedrich Puchta (1798-1856):

To him the idea of law came due to conflict of interest between the individual will and general
will. That automatically formed the state which delimits the sphere of the individual and develops
into a tangible and workable system. The contribution of Putcha is that he gave two-fold aspect of
human will and origin of state.

3 Tandon, M.P. Jurisprudence 1992, P·98 C.LF. Allahabad.

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).

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.

Criticism of Savigny’s View

The views of Savigny were criticized by many jurists:

1. Charles Allen

Charles Allen criticized Savigny’s view that law should be found or based on the customs. Allen
was of the view that customs are not the outcome of common consciousness of people. But they
are the outcome of the interest of a powerful and strong of a ruling class. For example, slavery
which was recognized and prevailed in certain societies by the powerful classes of society.

2. Prof. Stone
Prof. Stone criticized the Savigny and says that he (Savigny) ignored the efficiency of the
legislation and planned law and social change. And over emphasized on the consciousness of
people.

For example, In India, the abolition of Sati and widow’s remarriage are brought in to change
because of powerful and effective legislation.4

4
Shodhganga.inflibnet.ac.in.
Who was Sir Henry Maine?

Maine (1822-1888) Maine made very valuable contribution to legal philosophy by way of historic
comparative method. He was an erudite scholar of law. He started his career as Regius Professor
of Civil Law in the University of Cambridge at an early age of twenty-five. He was law Member
in-the Council of the Governor General of India between 1861 and 1869. This. provided him an
opportunity for the study of Indian legal system. From 1869 to 1877 he occupied the chair of
historical and comparative jurisprudence in Corpus Christi College, Oxford. After that he held the
distinguished post of the Master of Trinity Hall Cambridge.

Stages of Development of law:

1. Law made by the ruler under divine inspiration: -

In the beginning, the law was made by the command of the king believed to be acting under the
divine inspiration of Goddess of justice. Who was above the law and whose commands must
be obeyed by the inferiors.

2. Customary Law: -

In the next stage, the office of the King or Judge was inspired by the heads of the councils.
Priest became a repository of law which circulated the King’s power and claimed the sole
monopoly of knowledge. Therefore, the priest class tried to preserve the customs of race or
caste intact. Since the art of writing was not invented, the customs of the community became
law for those who were united with blood relations. In this way, we notice a special event. The
concept of custom is a development of the theory of Maine emerging behind the themesters or
judgments.

3. Knowledge of law in the hands of Priests: -

In the next phase of the development of the law, in order to implement and execute the law
inspired by the Priest class, the King’s right claimed to be learned in law as well as in religion.
The priest class claimed that they remembered the rules of customary law because the art of
writing was not developed till then.
4. Codification: -

Then comes the era of codification marks the fourth and perhaps the final stage of development of
law. With the discovery of the art of writing, a section of scholars and jurists came forward to
condemn the authority of the priests as law officials. He advocated the codification of the law to
make it accessible and easy to know. It broke the monopoly of the Priest class in matters of
administration of law. The most important codes of the era were Rome’s Twelve Tables, Codes of
Manu which were a mixture of moral, religious and civil laws, Twelve Tables in Rome, Attic Code
of Solomon, Hebrew Code, Codes of Hammurabi etc.

Maine further states that the societies which do not progress beyond the fourth stage which classes
the 'era of spontaneous legal development are static societies. The societies which go on
developing their law by new methods are called progressive. Progressive societies develop their
laws by three methods - (1) Legal fiction (2) equity & (3) legislation.

Legal fiction changes the law according to the changing needs of the society without making any
change in the letter of law. These are innumerable examples of it in English and Roman Law.
Equity consists of those principles which are considered to be invested with a higher sacredness
than these of positive law. It is used to modify the last which is most direct and systematic method
of law making. As to contributions of Maine, we find in him a very balanced view of history.
Savigny explained the relation between community and the law but Maine went further and
pointed out the link between development of both and purged out many of the exaggerations which
Savigny had made. Maine studied the legal system of various communities and by their analysis
laid down a comprehensive development of law. He reorganized legislation as a very potent source
of law. He used the study of legal history mostly to understand the post and not to determine the
future course and standards, and in this field, he made valuable contribution to legal theory.
Maine's theory preaches a belief in progress and it contained a sociological approach.

Major Works by Sir Henry Maine

• The first work of Maine ‘Ancient Law’ was published in 1861.
• He also wrote Village Communities (1871),
• Early History of Institutions (1875)
• Dissertations of Early Law and Custom (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 of Savigny and Montesquieu and he avoided what was abstract and unreal
Romanticism.

Maine favored legislation and codification of law, unlike Savigny. 5

Static and Progressive Societies:

Further development by legal fiction, equity and legislation.- The societies which do not progress
beyond the fourth stage which closes the era spontaneous legal development are static societies (as
Maine calls them). The societies which go on developing their law by new methods are called
progressive. Progressive societies develop their laws by three methods: legal fiction, equity and
legislation. Legal fictions change the law according to the changing needs of the society without
making any change in the letter of the law. There are innumerable examples of it in English and
Roman law. Equity consists of those principles which are considered to be invested with a higher
sacredness than those of the positive law. It is used to modify the rigour of law. Legislation comes
in the last which is most direct and systematic method of law 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 the community depend on his belonging to a particular group in the community, for example,
the rights and duties of an individual in the family depend on his being a pater familias or a
dependent, etc. In progressive societies the idea of status a disintegrated. There is a ‘gradual
dissolution of family dependency and the growth of individual obligation comes at its place. The
individual is steadily substituted for the family, as the unity of which civil law s take account.’

Growth of the idea of contract. - Gradually the institution of pater families withers away. Slave
gets more and more freedom, and now rights and obligations depend on contract or free
negotiations of the individuals. After tracing this course of development. Maine propounds his
important thesis: “The movement of progressive societies has hitherto been a movement from
status to contract.”

5 blog.ipleaders.in.
Maine's thesis true in his time. - Maine was perfectly right when he propounds this thesis. Apart
from the instances from ancient Roman law, during his own time he saw the emancipation of
individual from status in England and in the Continent. In England, the position of married women
improved. Many a civic disability on the ground of religion were removed by statutes. More
freedom was given to servants to make contracts. The Industrial Revolution turned many peasant
communities into an industrial proletariat who had freedom to enter into contract with the
employer. Maine witnessed also the triumph of the industrial North, a community more based on
free contract, over the agricultural and feudal South, more favouring status and retaining the
institution of slavery, in the American Civil War. These all made him to come to the conclusion
that a progressive society moves from status to contract.

Theory no longer holds good: Individual freedom of contract curtailed. -But then there came a
counter-move, the signs of which were apparent in the time of Maine himself. It was realized that
idea of freedom of contract between a powerful capitalist and a starving workman was ridiculous
and hollow. The organizations to protect the workmen came into existence. The employers too
formed their association. Now, in place of individual freedom of contract there came a group
bargaining. Apart from these, a lot of social legislation has been passed which have fixed
maximum working hours and minimum wages, and have laid down the rules regarding
compensation and other conditions of service and the individual is bound by them.

Changes in the concept and functions of the State. - Now, there have been great changes in the
concept and functions of the state Which have caused a growing interference into the activities of
the individual by the State. Even the contracts, which an individual enters into in everyday life,
have been standardized, as contract for water, or electricity supply, or contract for a carriage with
a railway company. Individuals cannot change any of terms of these contracts. parties enter into
these contracts as members of social class and not as individuals. In modern times, contracts
between government departments and private firms have become important which also are
standard contracts and the terms are fixed beforehand. The progressive opinion in every country
is in favour of nationalization of industries and services. The freedom of contract is, thus, being
curtailed every day.

No place for the theory in totalitarian states: Maine himself qualified his theory. -In totalitarian
states, there has been a strong shift the status again. In these countries, no contract is allowed which
is in any way not in consonance with the state plan, or, is otherwise harmful to the society. From
these observations and examples, one may gather that the societies have not remained progressive
(according to Maine's thesis), but have become retrogressive. But Maine himself qualified his
statement by the use of the word ‘hitherto’. His theory was true during his time, and it was rather
an echo of the individual's development and the formation of a capitalist class which demanded
freedom of contract and labor. Another limitation of Maine's theory which he himself mentioned
is that it was not meant ‘to apply to personal conditions imposed otherwise than by natural
incapacity.’

Maine's view correct in one sense. -In one sense, Maine's theory still holds good. The trend of
legislation in countries which are undeveloped is still to remove personal disabilities which arise
due to membership of a class (status). Hindu Acts of 1955-56 in India are an example of it. In the
same way, labour laws and land laws passed during recent years have helped in emancipation of
workmen and peasants.

After looking into the history of legal development of various communities, one can easily say that
the trend has not been uniform everywhere. So long as capitalism has stronghold, Maine's theory
holds good, but when its forces start withering away, there is just a contrary movement. In
totalitarian states, the freedom of contract is confined to narrowest limits and Maine's theory does
not apply there.

Contribution of Maine

Improved upon the theory of historical school. -In Maine we find a very balanced view of history.
Savigny explained the relation between community and the law but Maine went further and
pointed out the link between the developments of both and pointed out many of the exaggerations
which Savigny had made.

Comparative study: Importance of Legislation: A balanced view. -Most of the historical jurists of
the Continent confined their studies only to Roman law but Maine studied the legal systems of
various communities and by their analysis laid down a comprehensive theory of the development
of law. On the one hand, differing from Savigny, Maine recognised legislation as a very potent
source of law, and on the other hand, he avoided the excesses of philosophical school of Germany.
He used the study of legal history mostly to understand the past and not to determine the future
course and standards, and in this field, he made valuable contributions to legal theory. Though
many of the statements of Maine about primitive societies and the course of development of
ancient law have been falsified by modern researches, modern anthropologists have had the
advantage of following the trail blazed by Maine and by others after him with the added advantage
of being able to profit from the researches of fellow workers in many directions.

He inspired later jurists. -Maine's theory preaches a belief in progress and it contained the seeds of
sociological approach. Jurists like Maitland, Vinogradoff and Bryce were inspired by Maine and
they applied his historical and comparative method to the study of law.

Criticism

Pollock while criticizing Maine’s view says ‘his theory is limited to laws of property only because
personal relations e.g., marriage, minor’s capacity etc, are still matters of status not of contract. In
totalitarian states there has been a strong shift to the status again. In these countries a contract is
allowed which is in any way not in consonance with the state plan or is otherwise harmful to the
society. Moreover, individual freedom of contract is curtailed by social legislations e.g., fixing of
maximum working hours and minimum wages, laying down rules regarding compensation and
other conditions of service. The thesis of Maine denying the title of conscious legislation is
disproved by intense and still unabated legislative activity which provides conscious direction and
many a time reverses the deeply rooted trends in society.

In spite of these defects in Maine’s ‘Status of Contract’s doctrine has been upheld by many jurists.
As Bodenheimer puts it, ‘this doctrine is no means his outstanding contribution to jurisprudence.
He has enshrined our knowledge and understanding of legal history in several respects. In Maine
we find a balanced view of history. Savigny explained the relation between community and law,
but Maine went further and pointed the link between the developments of both and purged out
many of the exaggerations which Savigny has made. Maine’s theory preaches a belief in progress
and it contained the germs of sociological approach. Maine improved on Savigny’s legal theory
which explained inter relation between community and law and also recognized role of legal
fictions, equity and legislation in evolution of law, while Savigny confined his study only to
Roman law and its applicability in Germany. Maine looked at it from broader perspective and
studies legal systems of different communities for his comparative research on evolution and
development of law Jurists like Maitland, Vinogradoff and Bryce were inspired by Maine and they
applied his historical and comparative method to the study of law.
Bibliography
• Jurisprudence:(Legal Theory), Dr. B.N. Mani Tripathi, 16th edn. 2012, Central Law
Agency, Allahabad.
• Shodhganga.
• Blog.ipleaders.in.
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• Mahajan, V.D. Jurisprudence and legal theory, 5th edn. P.560-61 Eastern Book Co. Lalbag
Lucknow.