PROGRESSIVE SOCIETIES AND LAW: APPROACH OF

HENRY MAINE

(By: Khushi Goyal)

(Roll No.: 22LLM026)
Abstract
Since the beginning of the twentieth century, legislation has been considered the
desired route to achieve social changes in society. India being a welfare society
has formulated laws & policies in such a manner so as to achieve desirable social
conditions, i.e., for the amelioration of vulnerable sections, the realization of
human rights, and abolition of detrimental age-old customs & traditions. Sir
Henry Maine, too in his theory of the Movement of society from status to contract,
has also formulated that legislation is one of a few mechanisms incorporated by
progressive societies to move ahead from the stage of codification and to usher in
radical changes. In the Indian scenario it has been believed that with legislation,
substantial changes have been bought to the different institutions of society.

INTRODUCTION

The law and the legal system play a pivotal role in any civilization. If there is no
law and order, a society become a chaotic place. Legal system is not only
necessarily for an orderly social life but also essential for the very existence of
mankind. The problem of defining law is not new. Some jurists define law as a
‘divinely ordered rule’ or as a ‘reflection of divine reasons.’ Law has also been
defined from different angles like philosophical, historical, social and realistic.

SIR HENRY MAINE

Sir Henry Maine was the founder of the English Historical School of Law.
Savigny’s view of Historical school was carried forward in England by Sir Henry
Maine. He made a comparative study of legal institutions of various communities
and laid down a theory of evolution. He was an erudite scholar of law.

MAINE DESCRIBES THE DEVELOPMENT OF LAW IN FOUR STAGES:

The primordial stages of legal development evolved spontaneously. Custom, or

the control of law by legal oligarchies, evolved naturally from the divinely
 inspired judgments of the ancient kings and judges. When these customs were
embodied in writing the natural and spontaneous development of the law ceased.
The knowledge & administration of customs goes into the hands of a minority
usually to Priests, due to the weakening of the power of original law – makers.
The Code of Hammurabi is one of such oldest known extant set of laws followed
by the Twelve Tables of Roman law, Law of Manu, Justinian Code etc.1 These
codes were nothing but compilation of diverse customary practices and usages
observed over the time to govern transactions and relationships among people. To
achieve the universal application of rules the written codes were accepted as the
norm of the state because customs and traditions vary across communities. The
Historical school of law, however, has believed that law is found not made and it
grows and evolves with the growth of society. It emanates from customs and its
origin lies in the consciousness of people. It can’t be artificially created rules
imposed by a sovereign unknown to the traditions, customs, and historical
background of the Nation. To understand the significance of legislation in
ensuring social change it is imperative to understand the nature of law and society
from the lens of Henry Maine, a prominent exponent of the Historical school of
law.
DEVELOPMENT OF LAW IN STATIC AND PROGRESSIVE
SOCIETIES:
In progressive societies, the administration of law is the function of public courts
established by sovereign authority in contrast to static or primitive societies where
it had always been the function of the family. The primitive procedure was slowly
replaced by a system of adjudication. The administration of law by the rigid social
and legal relationships within the ancient family is now extended with the
dissolution of the family and the emancipation of the individual in progressive
societies.2 Thus the legal condition of static societies which had arrested
development is characterized as “Status” by Maine, a fixed legal condition
dominated by family dependency. It was supported by the fact of the established
patriarchal family as the earliest social unit and smallest, indivisible unit as the

1
Britannica, T. Editors of Encyclopedia (2018, December 6). Code of Hammurabi. Encyclopedia Britannica.
Available at https://www.britannica.com/topic/Code-of-Hammurabi (last visited on Dec. 11, 2022).
2
Russell Kirk, The Thought of Sir Henry Maine 15 The Review of Politics, 86 (1953) available at:
https://www.jstor.org/stable/1404750 (last visited on Dec. 11, 2022).
 subject matter of civil law.3 The members of such families were dominated by the
patriarch or oldest male member. All social relationships were fixed by each
person's position within the family. He believed that the emancipation of an
individual is only possible when he or she becomes the smallest functional unit
and is liable for his or her actions and the only way to achieve it, is with the
dissolution of the patriarchal concept of family. Sir Henry Maine was of belief
that though customary law of people represents their true self but alterations are
must to progress and it could be done with help of legal fictions, equity &
legislation.

HENRY MAINE’S IDEA OF A PROGRESSIVE SOCIETY:

Maine's conception of progressive evolution was motivated by his comparative

studies of legal histories. From the study of Indian, Irish, German, and Roman
Law, Maine evolved his conception of Progress as an intellectual activity,
manifested in the continued production of new ideas and producing changes in
social and legal institutions. Maine arrived at his often-quoted conclusion that “the
movement of the progressive societies has hitherto been a movement from Status
to Contract.” To explain his theory of movement he mentioned that every state has
to pass through three stages namely, era of Divine law, era of customary law, and
thus priestly class came into the picture for their interpretation and the last stage is
marked by the codification. To him, this era of codes is the stage from which
many societies never proceed further thus giving up spontaneous social and legal
development, and such societies are termed as “static societies.”4
Societies which go on progressing after the fourth stage of development of law are
“progressive societies.” These societies reflect a movement and inclination
towards contract-based approach. 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 the letters of the law. Legal fiction
harmonizes the legal order but made the law difficult to understand.

3
Brian Smith, Maine's Concept of Progress 23 Journal of the History of Ideas 407 (1963) available at:
https://www.jstor.org/stable/2708216 (last visited on Dec. 11, 2022).
4
H. Maine, Ancient Law: Its Connection with the Early History of Society and its relation to Modern Ideas 171
(John Murray, London, 13th edn., 1890).
➢ Equity: Equity means anybody of rules existing by the side of the original
civil law, founded on distinct principles and claiming incidentally to supersede
the civil law by virtue of a superior sanctity inherent in those principles. It
means equity consists of those principles which higher in authority than the
original law. The principle of equity is applied to ensure fairness in the
society. Equity helps to remove rigidity and injustice.

➢ Legislation: The legislation is the most effective and desirable method of

legal change. Laws will be enacted and became operative officially. Thus, the
inference of these agencies of legal development in progressive societies is the
gradual dissolution of family dependency and the growth of individual
obligation in its place. The individual is steadily substituted for the family. In
other words, the rigid condition on which individual was born was withering
away and gives way to more freedom of will and movement gradually.

CONCLUSION

By concluding this, this implication of historical school in terms of approach

to law has been far-reaching. It provided a great stimulus to the historical
study of law and legal institution which has ingrained a sense of historical
perspective. It highlighted the perils of an over-hasty legislative experiment
and has taught a lesson that development should flow, in some spheres at any
rate, within the channels of tradition. It also tried to show some connection
between cultural evolution and some parts of the law, and the need to look
into the past in order to get a proper understanding of the law in modern times.