Theory of law by Sir Henry Maine || Historical school of Jurisprudence ||
In this article, we are going to discuss the theory
of law by Sir Henry Maine. And what is the contribution of Sir Henry Maine in
the Historical School of law in jurisprudence?, what is static and progressive
societies? etc.
In our
last article, we discussed the contribution of the Savigny in the Historical
law school in jurisprudence and also discuss the theory of Volksgeist.
Introduction:-
The historical
school of jurisprudence reveals the belief that history is the foundation of
the knowledge of the contemporary era. Two jurists who researched extensively in
this area – Friedrich Carl Von Savigny (1799 – 1861) and Sir Henry Maine
(1822-1888). We have discussed the jurist Friedrich Carl Von Savigny (1799 –
1861) in our last article. Now in this article, we will discuss only Sir Henry Maine and his theory in the historical law school.
The nineteenth-century evolutionism in
legal theory set initially by Savigny was nurtured with the publication of
Ancient Law in 1861 by Sir Henry Maine. Sir Henry Maine sets the set the stage
for anthropologists and sociologists like Durkheim, Morgan, Sorokin,
Zimmerman and Max Weber who reconstructed their typologies of society
on the approach and method of Sir Henry Maine. These varying typologies of
society are essentially indicators of historical growth as to how the
communities evolved.
Sir Henry Maine came to a conclusion through
his comparative study that the development of law and other social institutions
in almost all the ancient societies related to Hindu, Roman, Anglo-Saxon,
Hebrew and Germanic communities were more or less the same as a palace is.
Who was Sir Henry Maine?:-
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.[1]
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. 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. Priest became a repository of law which 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 themesters 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 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 Societies:-
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 modifying
or go beyond the fourth stage are called static societies.
Thanks for Reading
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