Sir Henry Maine (1822-1888)
Sir Henry Maine's life, career & important milestones
Education and Early Career: Maine's academic journey began with his education at
Christ's Hospital and Pembroke College, Cambridge, where he excelled in classics and law.
He was called to the Bar in 1847 and practiced law for several years, gaining practical
experience in legal matters before transitioning to academia.
Appointment as Professor: In 1848, Maine was appointed as a professor of civil law at the
University of Oxford, where he taught until 1854. His time at Oxford allowed him to delve
deeply into legal studies and lay the groundwork for his future scholarly endeavors.
Service in India: From 1862 to 1869, Maine served as the legal member of the Governor-
General's Council in India. His experiences in India profoundly influenced his understanding
of legal systems, societal structures, and the complexities of colonial governance, shaping his
later writings and perspectives on legal evolution and comparative law.
Publication of "Ancient Law": Maine's most renowned work, "Ancient Law: Its
Connection with the Early History of Society, and Its Relation to Modern Ideas," was
published in 1861. This groundbreaking book revolutionized the study of legal history and
laid the foundation for comparative legal studies, establishing Maine as a leading figure in
legal scholarship.
Exploration of Village Communities: Maine's interest in anthropology and property rights
led to the publication of "Village Communities in the East and West" in 1871. This work
expanded his scholarly contributions beyond legal history, offering insights into communal
land ownership, customary laws, and social structures in traditional village societies.
Analysis of Institutions: In "Early History of Institutions" (1875), Maine further explored
the evolution of institutions such as family, property, and government, providing a
comprehensive analysis of their historical development and significance in shaping human
societies.
Engagement with Political Theory: Maine's later works, including "Popular Government"
(1885), reflected his engagement with political theory and governance. He contributed
valuable insights into democratic principles, sovereignty, and the interplay between law and
political power, influencing discussions on constitutionalism and political philosophy.
Legacy and Influence: Sir Henry Maine's interdisciplinary approach to legal history,
anthropology, and political theory continues to inspire scholars across various disciplines. His
critical perspectives on legal evolution, comparative law, and societal development have left a
lasting impact on fields such as legal studies, anthropology, sociology, and political science.
These milestones collectively highlight Maine's significant contributions to academic
scholarship, intellectual discourse, and the advancement of knowledge in diverse areas of
study.
Sir Henry Maine was a renowned British jurist and legal historian whose work had a
significant impact on the fields of law, anthropology, and political theory. He is best known
for his groundbreaking book "Ancient Law" published in 1861, which explored the evolution
of legal systems and the transition from primitive societies to more complex civilizations.
Maine's work challenged traditional views of legal development by highlighting the shift
from customary laws based on kinship and status to more formalized legal systems based on
written codes and statutes. He introduced the concept of "status" and "contract" as key
elements in legal evolution, arguing that early societies primarily operated on status-based
laws, while modern societies increasingly rely on contractual relationships.
His ideas on legal history and societal evolution influenced the development of comparative
law and anthropology, sparking debates and further research into the origins and structures of
legal systems worldwide. Maine's contributions continue to be studied and debated by
scholars across various disciplines, making him a pivotal figure in the understanding of legal
and social progress.
Sir Henry Maine was the founder of the English Historical School of Law. Savigny’s view of
Historical school was carried forward in England by Sir Henry Maine.
Sir Henry Sumner Maine was a British comparative jurist and historian whose most
influential work, Ancient Law, pioneered the field of comparative jurisprudence and
effectively founded the anthropology of law. Holding conservative views that would now be
considered racist, he identified progress and civilization with people of Aryan descent and
saw no reason to study the customs of other racial groups. Property in the modern or civilized
sense, Maine argued, was formed by the gradual disentanglement of the separate rights of
individuals from the collective rights of the traditional communal family, such progress
leading to free agents who were able to establish contractual bonds with other individuals of
their choice. Maine's most influential idea was that historical progress consisted essentially of
this momentous transition from inherited “status” to consensual “contract” as the basis of
modern law.
Contributions and areas of focus:
Legal Evolution and Comparative Law: Maine's exploration of legal evolution in "Ancient
Law" laid the foundation for comparative legal studies. He highlighted the transition from
archaic legal systems based on custom and status to more modern legal frameworks grounded
in written laws and contractual relationships. His comparative approach influenced
subsequent scholars to study legal systems across cultures and historical periods, leading to a
better understanding of legal development worldwide.
Village Communities and Property Rights: In "Village Communities in the East and West"
(1871), Maine delved into the historical and anthropological aspects of village communities,
particularly in India and other parts of Asia. He examined communal land ownership,
customary laws governing property rights within these communities, and the impact of
British colonial policies on traditional land tenure systems. His work contributed to the study
of property rights, land reforms, and agrarian societies.
Early History of Institutions: Maine's book "Early History of Institutions" (1875) expanded
on his ideas about legal and social evolution by analyzing the development of various
institutions such as family, property, government, and religion. He traced the origins of these
institutions from primitive societies to more complex civilizations, emphasizing the role of
law and custom in shaping social structures and governance.
Political Theory and Governance: Maine's later works, including "Popular Government"
(1885), engaged with political theory and the evolving nature of governance in democratic
societies. He explored concepts such as sovereignty, representation, and the relationship
between law and political power, contributing valuable insights to political philosophy and
constitutional studies.
Critique of Western Legal Assumptions: Maine's scholarship often critiqued Eurocentric
views of legal and social progress, challenging prevailing notions of superiority associated
with Western legal systems. His studies of non-Western legal traditions, especially in India,
highlighted the complexity and sophistication of indigenous legal systems, countering
simplistic evolutionary narratives.
Major Works by Sir Henry Maine
The first work of Maine ‘Ancient Law’ was published in 1861.
He also wrote Village Communities (1871),
Early History of Institutions (1875)
Dissertations of Early Law and Custom (1883).
Maine favored legislation and codification of law, unlike Savigny.
Maine describes the development of law in four stages:
According to Maine, law develops through four stages.
First stage
In the beginning, law was made by the commands of the ruler. Rulers are believed to be
acting under divine inspiration. And the laws are made on the commands of the rulers. The
judgment of the king was considered to be the judgment of God or some divine body. King
was merely an executor of judgments of God, not the law-maker.
Second stage
Then the commands of King converted into customary law. The custom prevails in the ruler
or majority class. Customs seems to have succeeded to the right and authorities of the king.
Third stage
The knowledge & administration of customs goes into the hands of a minority usually to
Priests, due to the weakening of the power of original law – makers.
Fourth stage
In the fourth and last stage, the law is codified and promulgated.
Static And Progressive Society
According to Henry Maine, there are two types of societies:
Static societies
Societies which does not progress and develop their legal structure after the fourth stage of
development of law are Static society. Static societies don’t progress beyond the era of codes.
The legal condition of static societies is characterized as ‘status’ by Maine. Status is a fixed
legal condition dominated by family dependence. For eg: the rights and duties of a wife,
child, slaves etc. remains chained to family nexus dominated by pater familias (father of the
family).
Progressive Society
Societies which go on progressing after the fourth stage of development of law are
Progressive Societies. They develop their laws with the help of these instruments:
Legal Fiction
Legal Fiction changes the law according to the needs of the society without making any
change in the letters of the law. Legal fiction harmonizes the legal order but made the law
difficult to understand. A legal fiction pre – supposes certain assumptions made on the basis
of which the law assumes certain things to exist which do not exist in reality and thus adopts
itself to new circumstances.
Eg: incorporated bodies are treated as legal persons in the eyes of law having rights and
obligations like living person, a child taken into adoption is treated as if he was the natural
born son or daughter etc.
Equity
Sir Henry Maine, “Equity means any body of rules existing by the side of the original civil
law, founded on distinct principles and claiming incidentally to supersede the civil law by
virtue of a superior sanctity inherent in those principles”. It means equity consists of those
principles which higher in authority than the original law. The principle of equity is
applied to ensure fairness in the society. Equity helps to remove rigidity and injustice.
However, the term ‘equity’ and ‘equality’ are not same. Equity refers to fairness, justice and
impartiality that is done on account of certain grounds. On the other hand, equality refers to
equal sharing g and division, keeping everyone at the same level.
Example: in a family, giving different quantity of food to all the family members as per their
age, level of physical activity and dietary requirement of each of them is equity. On the other
hand, in a family giving equal quantity of food to all family members irrespective of their
requirement and need is equality.
Legislation
The legislation is the most effective and desirable method of legal change. Laws will be
enacted and became operative officially.
Thus, the inference of these agencies of legal development in progressive societies is the
gradual dissolution of family dependency and the growth of individual obligation in its place.
The individual is steadily substituted for the family. In other words, the rigid condition on
which individual was born was withering away and gives way to more freedom of will and
movement gradually. The authority of the pater familias loosens and the individual can enter
into contract. Hence, progressive societies are characterized by increasing legal freedom of
movement of the individual.
Sir Henry Maine's impact on law:
The impact was profound and far-reaching, influencing both legal theory and the practice of
law. Here are some key aspects of his impact on law:
Legal Evolution and Comparative Law: Maine's seminal work, "Ancient Law,"
revolutionized the study of legal history and laid the foundation for comparative law as a
distinct field of inquiry. His exploration of legal evolution from primitive societies to modern
legal systems highlighted the importance of understanding legal development across different
cultures and historical periods. This approach contributed to the growth of comparative law
as scholars sought to compare and analyze legal systems globally.
Concept of Status and Contract: Maine introduced the concepts of "status" and "contract"
as fundamental elements in legal evolution. He argued that early societies primarily operated
on status-based laws, where individuals' rights and obligations were determined by their
social position. In contrast, modern legal systems increasingly rely on contractual
relationships based on mutual agreements and individual rights. This distinction influenced
legal thinking and discussions on the nature of legal norms and societal organization.
Critique of Legal Assumptions: Maine's scholarship challenged prevailing legal
assumptions, especially Eurocentric views of legal superiority. His studies of non-Western
legal traditions, particularly in India, highlighted the complexity and sophistication of
indigenous legal systems. This critical perspective encouraged scholars to question
ethnocentric biases in legal analysis and to appreciate the diversity of legal norms and
practices worldwide.
Impact on Jurisprudence: Maine's ideas on legal evolution and the interplay between law
and society contributed significantly to jurisprudential debates. His emphasis on
understanding law within its historical and social contexts influenced legal theorists to
consider broader societal factors in legal analysis. This approach enriched jurisprudence by
integrating insights from history, anthropology, and political theory into legal scholarship.
Influence on Colonial and Comparative Law Studies: Maine's experiences in India as a
legal scholar and administrator informed his understanding of colonial legal systems and their
implications for indigenous laws and customs. His works inspired subsequent studies in
colonial and postcolonial legal theory, exploring the intersections of legal regimes, cultural
practices, and power dynamics. Maine's comparative approach also influenced efforts to
harmonize legal principles across diverse legal systems and jurisdictions.
Legacy in Legal Education: Maine's contributions to legal theory and comparative law
continue to shape legal education and research. His works remain foundational texts in law
schools and are studied by students and scholars interested in legal history, comparative law,
and interdisciplinary legal studies. Maine's interdisciplinary approach also underscores the
importance of integrating historical, social, and cultural perspectives into legal education and
practice.
Overall, Sir Henry Maine's impact on law extends beyond his pioneering ideas in legal
evolution and comparative law. His critical insights, methodological rigor, and
interdisciplinary approach continue to influence legal scholarship, shaping contemporary
discussions on law, society, and governance.
References
Review: Henry Maine and the Re-Constitution of the British Empire on
JSTOR
Ancient law : its connection with the early history of society and its
relation to modern ideas | WorldCat.org
(PDF) Maine, Henry (1822–88) (researchgate.net)
The Project Gutenberg eBook of Ancient Law, by Sir Henry James Sumner
Maine.
