Sir Henry Maine’s Contribution to the Development of Law

Introduction By – Hitesh M (21LUL11013)

Salmond - “Historical jurisprudence is the part of legal history that deals with the general principles
governing the origin and development of law and how various influences shape it. It also covers the
origins and development of essential legal ideas and principles, which are fundamental to the
philosophy of law. These same ideas and principles are explored from a different perspective by
analytical jurisprudence. Historical jurisprudence is essentially the history of the foundational
principles and concepts of the legal system.”
This school of thought contends that laws are not abstract, universal principles but are intricately
connected to the customs, traditions, habits and evolving consciousness of a society. Key figures such
as Friedrich Carl von Savigny, Montesquieu and Henry Maine played pivotal roles in developing this
jurisprudential approach. Savigny’s concept of “Volksgeist” highlighted the collective will of the
people in moulding the law
The Historical School arose as a reaction to the natural law perspective. The natural law theory asserts
that laws originate from a divine power and have existed since the beginning of the world. The
Analytical School focuses on positive law, examining its origins in judges, the state and legislators

Sir Henry Maine

Sir Henry James Sumner Maine (15 August 1822 – 3 February 1888),born in Kelso, Roxburgh,
Scotland, (a.k.a Social Darwinist). British jurist and legal historian who pioneered the study
of comparative law, notably primitive law and anthropological jurisprudence.
Was professor of civil law at the University of Cambridge (1847–54). A member of the council of the
governor-general of India (1863–69), Maine was largely responsible for the codification of Indian law.
In 1869 he became the first professor of comparative jurisprudence at the University of Oxford and, in
1887, a professor of international law at Cambridge.
Most communities are found on patriarchal pattern, with the pater familias as head, the eldest male.
The pater familias constituted the lowest unit of primitive communities. So, an individual had no
separate existence.

Stages of Development of Law

A) Divine Law – Themes (Goddess of Justice), King under divine inspiration, Themestes (awards by
Themes), executed by the King

B) Customary Law – ‘Custom is to society what law is to State’, application of Divine law leads to
customary law.

C) Priestly class as repository of customary law – The priestly class take over the authority of King to
enforce and execute law. As they are learned and religious. They had memorised all customary
laws as there was no writing.

D) Codification – With the inception of writing. Learned men and jurists denounce priestly class.
They codified the customary law, accessible to commoners. Examples - Hindu Code of Manu,
Code of Hammurabi, Twelve Tables of Rome, Hebrew Code, etc.
Types of Societies – by Henry Maine
A) 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 modify or go beyond
the fourth stage are called static societies.
B) Progressive Societies – Those societies which go beyond the fourth stage as developing their laws,
by new methods are called progressive societies.

Development of Law in Progressive Societies

A) Legal Fiction - Legal Fiction changes the law according to the needs of the society without making
any change in the letters of the law. A legal fiction pre – supposes certain assumptions made on the
basis of which the law assumes certain things to exist which do not exist in reality and thus adopts
itself to new circumstances. Henry Maine – “any assumption which conceals or effects to conceal
the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation
being modified. Examples - Body corporate as legal person, adopted children, illegitimate children.
Generally used to overcome rigidity of law.

B) Equity - Equity - “Equity means any body 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 started with Chancery Courts (Equity Courts) as
Common Law Judges were rigid, people approached the King. The King entrusted this to
Chancellor. Equity refers to fairness, justice and partiality that is done on account of certain
grounds. Defects of common law (i) absence of remedy, (ii) inadequacy of remedy, (iii) excessive
formalism.

C) Legislation - Legislation is the most effective and desirable method of legal change. Laws will be
enacted and became operative officially. Systematic and Direct Method, by introducing new laws.
Legislature’s power is accepted by the people and courts. Legislation is most powerful instrument
of legal reform; it is superior over other methods. It can make or break the nation. It can validate
and invalidate old laws, the past, etc.

Conclusion
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. The authority of the pater familias loosens and the individual can enter into
contract. Hence, progressive societies are characterized by increasing legal freedom of movement of
the individual.