UNIT II-HISTORICAL

SCHOOL
HENRY MAINE
 The reasons for the emergence of this school are:
1. It came as a reaction to the natural school of law- Historical
school of Jurisprudence focuses on the formation of law by people not
by some divine origin.  
2. It opposes the ideology of the analytical school of
jurisprudence- The subject matter of Analytical school of
Jurisprudence is positive law. Historical School laid emphasis on the
formation of law by people through customs and habits, not by the
judges and superior authority.
• Sir Henry Maine
Sir Henry Maine was the founder of the English Historical School of
Law. Savigny’s views of Historical school 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 also wrote Village Communities (1871),
Early History of Institutions (1875)  
Dissertations of Early Law and Custom (1883). 
• He is famous for the thesis outlined in his book Ancient Law that
law and society developed "from status to contract." According to
the thesis, in the ancient world individuals were tightly bound by
status to traditional groups, while in the modern one, in which
individuals are viewed as autonomous agents, they are free to make
contracts and form associations with whomever they choose.
Because of this thesis, Maine can be seen as one of the forefathers of
modern legal anthropology, legal history and sociology of law.
• The movement of the progressive societies has been
uniform in one respect. Through all its course it has
been distinguished by the gradual dissolution of family
dependency and the growth of individual obligation in
its place.
• Starting from a condition of society in which all the
relations of Persons are summed up in the relations of
Family, we seem to have steadily moved towards a
phase of social order in which all these relations arise
from the free agreement of Individuals. In Western
Europe the progress achieved in this direction has been
considerable.
 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. 
2.Customary Law:-
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.
 3.Knowledge of law in the hands of Priests:-
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.
 Types of Societies:-
Progressive Societies:-
According to Henry Maine, those societies which go beyond the fourth
stage as developing their laws, by new methods. Societies develop their
laws by the three methods i.e. Legal Fiction, Equity, and Legislation.
Static Societies:-
When the primitive law has been embodied in a code, there is an end to
its spontaneous development and such communities or societies which
do not modifying or go beyond the fourth stage are called static
societies.
 DEVELOPMENT OF SOCIETIES
Sir Henry Maine through his comparative study came to a conclusion
that the development of law and other social institution has been more
or less identical in almost all the ancient societies belonging to Hindu,
Roman, Anglo-Saxon, Hebrew and Germanic communities. Most of
these communities are founded on Patriarchal pattern wherein the
eldest male parent called the Pater familias dominated the entire family.
There were some communities which followed matriarchal pattern.
 According to Maine, Pater familias constituted the lowest
unit of primitive communities. A few families together
formed the family group. An aggregation of families
constituted gens which in turn led to the formation of tribes
and collection of tribe formed the community. The individual
member of the family had no individual existence then his
status.
Maine arrived at his often quoted conclusion that “the movement of the
progressive societies has hitherto been a movement from Status to
Contract.” Status is a fixed condition in which an individual finds
himself without reference to his will and from which he cannot divest
himself by his own efforts. It is indicative of a social order in which the
group, not the individual, is the primary unit of social life; every
individual is enmeshed in a network of a family and group ties.
With the progress of civilisation this condition gradually gives away to
a social system based on contract. This system is characterized by
individual freedom, in that “the rights, duties and liabilities flow from
voluntary action and are consequences of exertion of the human will.”
A progressive civilisation, in the view of Maine, is manifested by the
emergence of the independent, free, and self-determining individual as
the primary unit of social life.