· SIR HENRY MAINE (1822 – 1888) :
Savigny’s method of the historical school was followed in England by Sir Henry Maine, Lord Bryce & many others who made studies of various legal systems on historical lines. Maine published his first work ‘Ancient Law’ in 1861. This is considered to be the manifesto of his lifework in which he stated his general doctrines. He also wrote Village Communities (1871), Early History of Institutions (1875) & Dissertations of Early Law and Custom (1883). He was law member in the Council of the Governor–General of India b/w 1861 & 1869, which provided him an opportunity for the study of Indian legal system.
Maine inaugurated both comparative & anthropological approaches to the study of law. Unlike Savigny, Maine favoured legislation & codification, he did not share Savigny’s mystique of the Volksgeist & he used the study of legal history mostly to understand the past & not to determine the future course & standards.
Maine classified the development of law in the following stages :
(i) In the beginning, law was made by the commands of the ruler believed to be acting under the divine inspiration, e.g., Themistes of ancient Greek. When a king decided a dispute by a sentence, the judgment was assumed to be the result of direct inspiration. The king was not the maker of law, but merely an executor of judgments of the God.
(ii) In the second stage, the commands crystallise into customary law. Customs seem to have succeeded to the prerogatives of the king. Hwr, they don’t appear to hv pretended to direct inspiration for each sentence & the progress of thought no longer permits the solution of a particular dispute to be explained by supposing an extra–human interposition.
(iii) In the third stage, the knowledge & administration of customs goes into the hands of a minority, due to the weakening of the power of the original law-makers, usually of a religious nature, e.g. priests. The ruler is superseded by a minority who obtain control over the law.
(iv) In the fourth stage, the law is promulgated in the form of a code.
Static & Progressive Societies :
The growth of law was on a uniform basis amongst the primitive societies upto a certain stage of development. The societies, which do not progress beyond the fourth stage & close the era of spontaneous legal development, r static societies. The stationary/static societies don’t move forward beyond the era of the codes.
The societies, which go on developing their law by new methods, r called progressive societies. They develop their law with the help of three instruments / methods, namely, legal fiction, equity & legislation, in order to make law harmonious to social needs & change.
(i) By use of legal fictions, law is altered to changing needs of the society, while it is pretended that it remains what it was. Thus, legal fictions change the law according to the changing needs of the society without making any change in the letter of law. He thought fictions should be abandoned in a society because they made the law more difficult to understand & harmonise legal order.
(ii) Equity is used to modify the law as a set of principles invested with higher sacredness than those of original law. Equity came to remove the rigidity in law & to remove injustice, delay & other inconveniences. According to Maine, equity is a body of rules existing by the side of the original civil law & founded on distinct principles.
(iii) The final stage comes with the legislation, which is the last effective instrumentality of quick social reform. Law can be enacted by explicit declarations of intention incorporated in the language of legal enactments. Maine regarded it as the most desirable method of legal change.
In early societies–both ‘static’ & ‘progressive’, the legal condition of the individual is determined by status, i.e., his claims, duties, etc. are determined by law. The march of progressive societies witnessed the disintegration of status & the determination of legal condition of the individual by free negotiation on his part. The development of societies was summed up by Maine in the following famous phrase, “If we employ status to signify the conditions only & avoid applying the term to said conditions, we may say that the movement of the progressive societies has hitherto been a movement from status to contract”.
From a condition of society, in which all the relations of persons wr summed up in the relation of family, we seemed to hv steadily moved towards a phase of social order in which all these relations arose from free agreement of individuals.
According to Maine, status is a fixed condition in which an individual finds himself without reference to his will and of which he can’t divest himself by his own efforts. The group, not the individual, is the primary unit of social life. With the progress of civilisation, this condition gradually gives way to a social system based on contract. This is the age of the standardised contract & of collective bargaining (trade unions, business associations, etc.). Even the contracts, which an individual enters into in everyday life, have been standardised as contract for water, electricity or contract for a carriage with a railway company. The freedom of contract is, thus, being curtailed every day.
Thus, Maine’s theory of ‘Status to Contract’ does not have much force in the modern age. In India, the policy of ‘mixed economy’ has assumed greater control over individual liberty & freedom. The State can impose reasonable restrictions in the interest of the public {Art. 19(6)}. Pollock says that this theory is limited only to laws of property because personal relations like marriage, minor’s capacity, etc. are still matters of status & not of contract.
However, in one sense, Maine’s theory still holds good. The trend of legislation in undeveloped or developing countries is to remove personal disabilities, which arise due to membership of a class (status).
On the whole, Maine presented a balanced view of history of law. Savigny had explained the relation b/w community & law, but Maine went further & pointed out the link b/w the developments of both. His conclusions are based on comparative study of different systems & hence their value is greater than other studies based on Roman Law exclusively. Influenced Friedmann, Dicey, etc.
In the words of Dr. Friedmann: It can be concluded that the contribution of Maine is an important piece of comparative legal research to a legal theory inspired by principles of historical evolution. His great contribution to legal theory specially lies in the combination of what is best in the theories of both Montesquieu & Savigny. Maine’s theory avoids the danger of an excessive disintegration of theoretical laws of legal evolution. It is also free from the abstract & unreal romanticism, unlike Savigny’s theory.
· Difference b/w Historical & Analytical School :
S.No.
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Analytical School
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Historical School
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1.
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Law is the command of the sovereign (created by sovereign).
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Law is found & not made.
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2.
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Law is enforced by the sovereign.
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Law is independent of political authority & its enforcement.
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3.
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Example of typical law is statute. Custom isn’t law, until its validity has been established by a judicial decision/by an Act of legislature.
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Example of typical law is custom. Custom is law by itself. It does not require State recognition to become a law.
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4.
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Force of politically organised society is the basis of law.
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Law rests on the social pressure.
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5.
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Judges find themselves to interpretation of statute.
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Judges to consider only history of legislation.
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6.
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Applicable to developed countries – matured legal systems.
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Applicable to developing countries – primitive legal institutions of society.
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