Sir Henry Maine was the founder and chief exponent of the English historical school of law.

His work was strongly influenced by Savigny’s historical approach to problems of

jurisprudence but he went beyond Savigny and undertook broad comparative studies of legal
institutions in primitive and progressive societies. These studies led him to a belief that the
legal history of people shows a recurring pattern in different social orders and in similar
historical circumstances. According to him, there does not exist infinite possibilities for
building and managing human societies so, there are certain political, social and legal forms
reappear in different garb.

The movement has been uniform in respect of progressive societies in one particular respect
i.e. it has been characterised through all its course by gradual dissolution of family dependency
and the growth of individual’s growth and obligations. The individual is steadily substituted
for the Family, as the unit of which civil laws take account. This advance has been at different
level of swiftness and there has been societies not absolutely stationery. Irrespective of the
pace, the change has not been subject to reaction or recoil. It is contract. Starting, as from one
terminus of history, 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. For
example: In Western Europe the progress achieved in this direction has been considerable.
Thus the status of the Slave has disappeared -- it has been superseded by the contractual relation
of the servant to his master. The status of the Female under Tutelage, if the tutelage be
understood of persons other than her husband, has also ceased to exist; from her coming of age
to her marriage all the relations she may form are relations of contract.

Then Maine arrived at his most quoted conviction that “the movement from Status to Contract.”
A fixed condition in which an individual finds himself without any reference to his own efforts
is referred to as ‘Status’. It is a social order in which the primary unit of social life is the group,
not individuals and almost every individual is tied by family and group ties. With this fading
away, the society has moved towards social system based on ‘Contract’. This is a system which
is characterised by individual freedom, in that “the rights, duties and liabilities flow from
voluntary action and are consequences of the exertion of the human will.”1 According to Maine,
a progressive society/ civilization is manifested by the emergence of the independent, free and
self- determining individual as primary unit of life.

1
Roscoe Pound, ‘The End of Law as Developed in Juristic Thought’ (1917) Harvard Law Review 201.
Sir Maine’s theory of sequence of phenomena in the general development of law and law-
making. He believed in the earliest period law was created essentially by the personal
commandment of the patriarch rulers, who were believed to act under divine inspiration. This
was followed by the customary law, expounded and applied by small aristocracy or small
privileged class. The third stage was marked with codification of the customs as result of social
conflicts. The fourth stage consisted of changes in these archaic laws with the help of fiction,
equity and legislation to bring it in harmony with the progressive society. Finally, the scientific
jurisprudence brings all these forms into a consistent and systematic one. According to him,
not all societies are able to pass through all stages and their legal development in its particular
aspects does not show a uniform line.