Henry Maine

Introduction

Maine (1822-1888) Maine made very valuable contribution to legal philosophy by way of
historic comparative method. He was an erudite scholar of law. He started his career as Regius
Professor of Civil Law in the University of Cambridge at an early age of twenty five. He was law
Member in-the Council of the Governor General of India between 1861 and 1869. This .
provided him an opportunity for the study of Indian legal system. From 1869 to 1877 he
occupied the chair of historical and comparative jurisprudence in Corpus Christi College,
Oxford. After that he held the distinguished post of the Master of Trinity Hall Cambridge.

‘Ancient Law’, ‘Village ‘Communities’, ‘Early History of institutions’, ‘Dissertation on Early

Law and Customs’, are the important contributions made by him to legal thought and legal
philosophy.

Four Stages of Development of Law

(1) Law made by the ruler under divine inspiration—

In the beginning law was made by the commands of the rulers believed to be acting under
the divine inspiration, as the inspiration by themistes in the Homeric Poems.

(2) Customary Law—

In the second stage the commands crystallised into customary law.

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(3) Knowledge of law in the hands of priests–

The knowledge and administration of customs goes into the hands of a minority, usually
of a religious nature, due to the weakening of the power of original law-makers. This is
the third stage.

(4) Codification—

Then comes the era of codes. Now law is promulgated in the form of a code, as Solon’s
Attic Code, or the Twelve Tables in Rome.

Static and Progressive Societies :

Further development by legal fiction, equity and legislation.—The societies which do not
progress beyond the fourth stage which closes the era of spontaneous legal development
are static societies (as Maine calls them). The societies which go on developing their law
by new methods are called progressive. Progressive societies develop their laws by three
methods : legal fiction, equity and legislation. Legal fictions change the law according to
the changing needs of the society without making any change in the letter of the ‘acv.
There are innumerable examples of it in English and Roman law. Equity consists of those
principles, which are considered to be “invested with a higher sacredness than those of
the positive law.” It is used to modify the rigour of law. Legislation comes in the last
which is the most direct and systematic method of law making.

Status disintegrated—
As to the legal conditions prevailing at the end of general course of evolution, i.e., of
static societies, Maine calls them ‘status’. The rights and liabilities of a member of the
community depend on his belonging to a particular group in the community. For
example, the rights and dudes of an individual in the family depend on his being a pater
familias or a dependent, etc. In progressive societies the idea of status is disintegrated.
There is a ‘gradual dissolution of family dependency and the growth of individual

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 obligation comes at its place. The individual is steadily substituted for the family, as the
unit of which civil laws take account.

Growth of the idea of contract—

Gradually the institution of pater familias withers away gets more and more freedom and
now rights and obligations depend on contract or free negotiations of the individuals.
After tracing the course of development Maine propounds his important thesis : ‘The
movement of progressive societies has hitherto been a movement from status to contract.’

Maine’s thesis true in his time—

Maine was perfectly right when he propounded this thesis. Apart from the instances from
ancient Roman law, during his own time he saw the emancipation of individual from
status in England and in the Continent. In England, the position of married women
improved. Many a civic disabilities on the ground of rel ig ion were removed by statutes.
More freedom was given to servants to make. contracts. The Industrial Revolution turned
many peasant communities into an industrial proletariat who had freedom to enter into
contract with the employer. Maine witnessed also the triumph of the industrial North, a
community more based, on free contract, over the agricultural and feudal South, more
favouring status and retaining the institution of a very in the American Civil-War. These
all made him to come to the conclusion that a progressive society moves from status to
contract.

Theory no longer holds good :

Individual freedom of contract curtailed—

But then there came a counter-move, the signs of which were, apparent in the time of
Maine himself. It was realized that idea of freedom of contract between a powerful
capitalist and a starving workman was ridiculous and hollow. The organisations to protect
the workmen came into existence. The employers too formed their association. Now, in
place of individual freedom of contract there came a group bargaining. Apart from these
a lot of social legislation has been passed which have fixed maximum working hours and
minimum wages, and have laid down the rules regarding compensation and other
condition- of service and the individual is bound by them.

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Charges in the concept and functions of the State—

Now, there have been great changes in the concept and functions of the state which have
caused a growing interference into the activities of the individual by the State. Even the
contracts, which an individual enters into in every day life, have been standardized, as
contract for water, or electricity supply, or contract for a carriage with a railway
company. Individual cannot change any of the terms of these contracts. Parties enter into
these contracts as members of social class and not as individuals. In modem times,
contracts between government departments and private firms have become important
which also are standard contracts and the terms are fixed before hand. The progressive
opinion in every country is in favour of nationalisation of industries and services. The
freedom of contract is. thus, being curtailed everyday.

No place for the theory in totalitarian states : Maine himself qualified his theory—

In totalitarian states there has been a strong shift to the status again. In these countries no
contract is allowed which is in any way not in consonance with the’state plan, or, is
otherwise harmful to the society. From these observations and examples one may gather
that the societies have not remained progressive (according to Maine’s thesis), but have
become retrogressive. But Maine himself qualified his statement by the use of the word
‘hitherto. His theory was true during his time, and it was rather an echo of the
individual’s development and ‘the formation of a capitalist class which demanded
freedom of contract and labour. Another limitation of Maine’s theory which he himself
mentioned is that it was not meant ‘to apply to personal conditions imposed otherwise
than by natural incapacity.’

Maine’s view correct in one sense—

In one sense Maine’s theory still holds good. The trend of legislation in countries which
are undeveloped is still to remove personal disabilities which arise due to membership of
a class (status). Hindu Acts of 1955-56 in India are examples of it. In the same way,
labour laws and land laws passed during recent years have helped in emancipation of
workmen and peasants. After looking into the history of legal development of various

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 communities, one can easily say that the trend has not been uniform everywhere. So long
as capitalism has stronghold, Maine’s theory holds good, but when its forces start
withering away, there is just a contrary movement. In totalitarian states the freedom of
contract is confined to narrowest limit and Maine’s theory does not apply there.

Contribution of Maine

Improved upon the theory of historical school—In Maine we find a very balanced view
of history. Savigny explained the relation between community and the law but Maine
went further and pointed out. the link between the developments of both and purged out
many , of the exaggerations which Savigny had made.

Comparative study : Importance of Legislation : A balanced view—

Most of the historical jurists of the Continent confined their studies only to Roman law
but Maine studied the legal systems of various communities and by their analysis laid
down a comprehensive theory of the development of law. On the one hand, differing
from Savigny.. Maine recognised legislation as a veiy potent source of law, and on the
other hand, he avoided the excesses of philosophical school of Germany. He used the
study of legal history mostly to understand the past and not to determine the future course
and standards, and in this field he made valuable contributions to legal theory. Though
many of the statements of Maine about primitive societies and the course of development
of ancient law have been falsified by modern researches. Modem anthropologists have
had the advantage of following the trial blazed by Maine and by others after him with the
added advantage of being able to profit from the researches of fellow workers many
directions.

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Contribution to Historical Jurisprudence

Status and contract . In his works, especially in Ancient Law (1861), Maine contrasted
early societies in which social relations are dominated by status with “progressive”
(complex) societies in which social relations are predominantly determined by contract.
By status Maine meant “a condition of society in which all the relations of Persons are
summed up in the relations of Family1”. These relations are ascribed to the individual as a
member of a kinship group. By contract Maine meant individual obligation arising “from
the free agreement of individuals.”

Although Maine explicitly declared that he could recognize no evidence that proved any
society to be entirely destitute of the concept of contract, his major proposition was that
in early societies the individual creates few or no rights for himself and few or no duties.
Rather, he is subject to the traditional rules that govern his status and to new rules which
are issued as commands by the head of his household.

Maine held that the primitive kinship group is patrilineal and autocratic. The commands
of the household headman are the authoritative expression of the patria potestas. “In
truth, in the primitive view, Relationship is exactly limited by Patria Potestas. Where the
Potestas begins, Kinship begins;. .. here we have the reason why the descendants of
females are outside the limits of archaic kinship2”.

The polar opposite to the patriarchally dominated, kinship-determined condition of status

is the kind of social system exemplified by the complex Roman society during the time of
Justinian. This kind of system is marked by contract-determined relations wherein the
first person promises to perform acts or to observe certain forbearances and wherein a
second person signifies his expectation that the first party will fulfill the proffered
promise. The mental act of consensus is theoretically separated from the external
formality of the ritual of the pact or convention (e.g., in transfers of possessions), and an
obligation has been added which receives the full support of legal enforcement. This is
true contract.

1
([1861] 1960, p. 99)
2
(ibid.,p. 88)

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Conclusion

Maine’s view
Sir Henry Maine (1822-1888) was the founder and the chief exponent of the English
historical school of law. He did support the view of Savigny but he went beyond Savigny in
undertaking broad comparative studies of the unfolding of legal institutions in primitive as well
as progressive societies. Friedmann rightly points out that Maine incorporated what was best in
the theories of Montesquieu and Savigny and avoided the abstract and unreal romanticism. These
studies led him to the conviction that the legal history reveals a pattern of evolution which recur
in different social orders and in similar historical circumstances. On the basis of the comparative
studies he distinguishes between what he called ‘statics’ and ‘progressive’ societies is roughly
the same and falls into hour stages. The first stage is that of law making by personal command
believed to be of divine inspiration e.g., the mists of Ancient Greece. The second stage occurs
when these commands crystallize into custom. In the third stage the ruler is superseded by a
minority oligarch which obtains control over the law, the fourth stage is the revolt of the majority
against this oligarchic monopoly and the consequent publication of the law in the form of a code
e.g., the XII tables in Rome. According to Maine the ‘static’ societies do not progress beyond
this stage. Whereas the most distinctive feature of ‘progressive’ societies is that they further
develop the law through fiction, equity and legislation.

In addition to the above view Maine has also pointed out that in early societies both
‘static’ and progressive’ the legal condition of the individual is determined by status i.e., his
rights, duties, privileges etc., are determined by law. The march of progressive societies
witnesses the disintegration of status and the determination of the legal condition of the
individual by free negotiation on his part. This was expressed in Maine’s of quoted
generalization:

“The movement of progressive societies has hitherto been a movement from status to
contract”.3

3
Henry Maine, Ancient law p180[1861 Ed by Pollock [1930]

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 According to Maine, status is a fixed condition in which an individual finds himself
without reference to his will and of which he cannot divest himself by his own efforts. It is
indicative of a social order in which the group, not the individual is primary unit of social life
life; every individual is enmeshed in a network of family and group ties. With a progress of
civilization this condition gradually gives way to a social system based on contract. This system
is characterized by individual freedom, in that ‘the rights, duties and liabilities flow form
voluntary action and are consequences of exertion of the human will”. The last stage of
development of law in progressive societies is legislation- the stage which prevails in almost all
modern societies.

Maine’s theory of ‘status to contract’ does not have mush force in the twentieth century.
Today a counter move towards status is more apparent in the sense that individual bargaining
freedom is substituted by collective group interest, collective bargaining standardized contracts
etc. With the emergence of the idea i.e., social pattern of state, much concentration is being paid
to the point viz., social control and social relations of all the activities of individual in groups for
common interest. In India, the policy of ‘mixed economy’ had assumed greater control over
individual liberty and freedom. The state can impose reasonable restriction in the interest of the
public.

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Criticism

Pollock while criticizing Maine’s view says ‘his theory is limited to laws of property only
because personal relations e.g., marriage, minor’s capacity etc, are still matters of status
not of contract. In totalitarian states there has been a strong shift to the status again. In
these countries a contract is allowed which is in any way not in consonance with the state
plan or is otherwise harmful to the society. Moreover individual freedom of contract is
curtailed by social legislations e.g., fixing of maximum working hours and minimum
wages, laying down rules regarding compensation and other conditions of service. The
thesis of Maine denying the title of conscious legislation is disproved by intense and still
unabated legislative activity which provides conscious direction and many a time
reverses the deeply rooted trends in society.

In spite of these defects in Maine’s ‘Status of Contract’s doctrine has been upheld by
many jurists. As Bodenheimer puts it, ‘this doctrine is no means his outstanding
contribution to jurisprudence. He has enshrined our knowledge and understanding of
legal history in several respects .In Maine we find a balanced view of history. Savigny
explained the relation between community and law, but Maine went further and pointed
the link between the developments of both and purged out many of the exaggerations
which Savigny has made. Maine’s theory preaches a belief in progress and it contained
the germs of sociological approach. Maine improved on Savigny’s legal theory which
explained inter relation between community and law and also recognized role of legal
fictions, equity and legislation in evolution of law, while Savigny confined his study only
to Roman law and its applicability in Germany. Maine looked at it from broader
perspective and studies legal systems of different communities for his comparative
research on evolution and development of law Jurists like Maitland, Vinogradoff and
Bryce were inspired by Maine and they applied his historical and comparative method to
the study of law.

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 Bibliography

Website Referred

1. infipark.com

2. lawdessertation.blogspot.in

3. encyclopedia.com

4. epgp.inflibnet.ac.in

5. britannica.com

Books Referred

1. Dr. N.V. Paranjape

2. Dr. B.N. Mani Tripathi

3. Dr. Avtar Singh

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