Q. Discuss Henry Mine's thought on Historical school of Jurisprudence. [2019 - 4 marks]
Q. Contribution of Sir Henry Maine. [2018 - 20 marks]
Historical School of Jurisprudence
Historical School of Jurisprudence emerged after Natural Law. According to this theory, law is the result of past forces and past influencers which is built and grown on the general consciousness of people.
Sir Henry Maine (1822 - 1888)
Sir Henry Maine was a British comparative jurist and historian. He was one of the pioneers of the History School of Law. He is famous for postulating the theory "Movement of progressive societies has hitherto been a movement from status to contract" in his legendary work "Ancient Law".
Stages of Development of law
1. Law made by the ruler under divine inspiration
The rules, who were believed to be the representative of the God, used to command laws which were bound to every citizen under his rule.
2. Customary Law
In the second stage, these commands transformed into customs.
3. Knowledge of law in the hands of Priests
In the third stage the priests became the custodian of the law. They became the repositories of the legal proceedings.
4. Codification
The fourth and the final stage of development of law was codification of the law. In this stage the memory of the priests were replaced with written codified law. The jurists advocated that codification of law made it accessible to everyone and easy to comprehend.
Types of Societies
According to Henry Maine societies are two types; Progressive Societies and Static Societies.
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 modify or go beyond the fourth stage are called static societies.
Progressive Societies
According to Henry Maine, the societies which continuously work toward development of their laws and legal system are progressive in nature. 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. Equity consists of those principles, which are considered to be higher than those of the positive law. It is used to modify the rigors of law. Legislation comes in the last which is the most direct and systematic method of law making.
Growth of the idea of contract
Gradually the general populace moves towards 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.’
Criticism of Maine's Theory
- Maine’s thesis true in his time
- Theory no longer holds good : Individual freedom of contract curtailed
- Charges in the concept and functions of the State
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