University of Petroleum and Energy Studies

School of Law

Academic year – 2020-2021.

BATCH: BA LLB
SEMESTER OF STUDY: IV
JURISPRUDENCE

Under the supervision of Debarati Pal

Submitted by: Devesh Pratap Singh

(R450219215)- 500077115
 MAINE

Sir Henry Maine was a brilliant 'English' jurist who took a well-balanced approach to history.
Maine expanded on Savigny's explanation of the relationship between culture and law,
pointing out the connection between their creation and removing many of Savigny's
exaggerations. Maine began his career at the University of Cambridge as Regius Professor of
Civil Law when he was just twenty-five years old. Between 1861 and 1869, he served on the
Governor General of India's Council as a Law Member. This gave him the opportunity to
learn about the Indian legal system. He was the chair of historical and comparative
jurisprudence at Corpus Christi College, Oxford, from 1869 to 1877. He made major
contributions to legal theory and philosophy with works such as "Ancient Law," "Village
Societies," "Early History of Institutions," and "Dissertation on Early Law and Customs."

Maine studied the legal systems of different cultures and laid down a systematic theory of the
history of law based on their study. Most historical jurists on the continent restricted their
research to Roman Law. On the one hand, Maine, unlike Savigny, accepted legislation as a
powerful source of law, and on the other, he resisted the excesses of the German
philosophical academy.

Maine used legal history to better understand the past rather than to decide the future path and
principles, and he made important contributions to legal theory in this area. Later
anthropological study has revealed new details that contradict Maine's view of the path of
legal progress, but his work is still laudable for his approach. Maine conducted a comparative
study of different legal systems and charted their evolution.

He flatly refused to recognise the concept of a social compact as the foundation for man's
rights and responsibilities in society, arguing that all we know about the earliest stages of
human societies indicates that they were organic bodies rather than contractual combinations.
He made a clear protest against speculations about the state of primitive man:

'These sketches of the plight of human beings in the first ages of the world,' says he, ' are
effected by first supposing mankind to be divested of a great part of the circumstances by
which they are now surrounded, and by then assuming that in the condition thus imagined,
they would preserve the same sentiments and prejudices by which they are now actuated,
although, in fact, these sentiments may have been created and engendered by those very
circumstances of which, by the hypothesis, they are to be stripped.'

According to him, law evolved through the 'four phases' outlined below:

• Legislation passed by the monarch with divine guidance

• Customary Law is a concept that refers to a collection of rules that apply to.
• Priests have access to legal expertise.
• Codification is essential.

"Static societies" are societies that do not evolve past the fourth level (as Maine calls them).
Progressive societies are those that continue to improve their legal systems using modern
approaches. Legal fiction, equity, and regulation are used to establish progressive rules.
Maine refers to the legal conditions that exist at the end of the general course of evolution,
i.e., in stagnant societies, as status, and concludes that a progressive society transitions "from
status to contract." Maine's theory encourages hope and incorporates the seeds of a
sociological approach. He influenced later jurists such as Maitland, Vinogradoff, and Lord
Bryce, who studied law using a historical and comparative approach.