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 to the Historical School of law in jurisprudence? what are 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.
The link is here:-Savigny’s theory of Volksgeist and Historical school of law,
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 essential 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.
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.
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 Societies:-
According to Henry Maine societies are two types; Progressive Societies and Static 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.
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.
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