HENRY MAINE

UNIT 3
WHAT IS HISTORICAL SCHOOL OF
JURISPRUDENCE
Fredrich Kari Von Savigny is universally recognized as the founder of the historical school or Jurisprudence. He
emphasized that for a proper understanding of law and legal institutions of any country it is imperative to take
into account history as also the society where the law and legal institutions have to operate since these were
closely inter-related.1 His emphasis on history as an important factor for the study of law has, however, to be
distinguished from legal history. Legal history merely catalogues, without any intensive searching or critical
appreciation or evolution of the development of law and legal institution. Historical jurisprudence, on the
other hand attempts to unravel the principles and processes operating behind the origin and development of
law and legal institution.
The jurists who invoke history in the name of tradition, custom, nation, etc., as against conscious law making
or law making based on certain rational or universally valid principles are said to belong to what is termed as
the Historical School. There are two predominant trends discernible in the Historical School. One stream of
thought, headed by Savigny, emphasis on the emotional and romantic element in invoking history. The other
stream of thought, headed by Sir Henry Maine, does not decry the importance of customs, traditions,
primitive institutions, etc., but studies legal evolution scientifically to discover by comparative method and
studies, the ideas which are common in the evolution of law and legal institutions in different societies.
WHO WAS HENRY MAINE? (1822-
1888)
Sir Henry Maine was a British comparative jurist and historian. He is famous for the thesis
outlined in his book Ancient Law that law and society developed ‘from status to contract.’ He
was a Cambridge Apostle. Shortly afterward, he accepted a tutorship at Trinity Hall. In 1847, he
was appointed a Regius Professor of Civil Law, and he was called to the bar three years later, he
held this chair till 1854. Meanwhile, in 1852 he had become one of the readers appointed by the
Inns of Court. He was a member of the Council of the Governor General of India (1863-69) and
he substantially contributed to codification of the Indian law. He is famous for his notable work,
Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas
(1861). To trace and define such concepts, he drew upon Roman law, western and eastern
European legal systems, Indian law, and Primitive law.
Maine made a comparative study of legal institution of various communities and laid down a
theory of evolution of law. His method was a great improvement upon historical school and
yielded fruitful results. Maine mad every valuable contribution to legal philosophy by way of
historic comparative method. He was an erudite scholar of law. 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 as an identical palta 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
in which the eldest female of the family was the central authority to manage the family affairs.
STATUS TO CONTRACT
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.
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 the 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. The
priest became a repository of law that 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 mesters 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 the
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.
TYPES OF SOCITIES
According to Henry Maine societies are two types; Progressive Societies and Static Societies.
Progressive Societies:-
According to Henry Maine, those societies which go beyond the fourth stage as developing their
laws, by new methods are called progressive societies. Progressive societies develop their laws
by the three methods namely; Legal Fiction, Equity, and Legislation.

Static Societies:-
According to Maine, 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 modify or go
beyond the fourth stage are called static societies.
 THREE METHODS BY WHICH
SOCITIES DEVELOP THEIR LAWS
1. LEGAL FICTION: According to this method, legal fictions, changes the law according to the changing needs of
the society without aiming any change in the latter of law. Maine defines legal fiction as any assumption which
conceals or affects to conceal the fact that a rule of law has undergone alteration, its letter remaining
unchanged, its operation being modified. Legal fiction satisfies the desire for improvement but at the same
time they do not offend the superstition, fear and dislike of change. At a particular stage of social development
they are invaluable expedients of social progress for overcoming the rigidity of law.
2. EQUITY:
Equity consists of principles which are considered to be invested with a higher sacredness than those of the
positive law. Equity belongs to a more advanced stage than fictions. The interference with the law is open and
avowed. It is a body of law existing by the side of the original civil law, founded on distinct principles claiming
incidentally to supersede the civil law by virtue of a superior sanctity inherent in these principles.
3. LEGISLATION:
Legislation is the most effective method of law making, it is considered to be the most systematic and direct
method of introducing reform through new laws. The power of the legislature to make laws has been widely
accepted by the courts and the people all over the world.
ASSESSMENT
Maine’s theory of ‘status to contract’ does not have mush force in the twentieth century. Today
a counter move towards status is more apparent in the sense that individual bargaining freedom
is substituted by collective group interest, collective bargaining standardized contracts etc. With
the emergence of the idea i.e., social pattern of state, much concentration is being paid to the
point viz., social control and social relations of all the activities of individual in groups for
common interest. In India, the policy of ‘mixed economy’ had assumed greater control over
individual liberty and freedom. The state can impose reasonable restriction in the interest of the
public.
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.
CONTRIBUTION
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 lawJurists like Maitland, Vinogradoff and Bryce were
inspired by Maine and they applied his historical and comparative method to the study of law.