sir henry

Sir Henry Maine: Anthropological Approach

Anthropological investigations into the nature of primitive and undeveloped systems of law are of modern origin and might be regarded as a product of the Historical School.  Pride of place will here be accorded to Sir Henry Maine (1822-1888), who was the first and still remains the greatest representative of Historical movement in England.

Sir Henry Maine was the founder of English Historical school of jurisprudence.  He agreed with Savigny’s view; but he went beyond Savigny in understanding law by comparative studies of legal institutions in primitive as well as progressive societies.  In fact Maine departed from Savigny in two important respects.  He believed in stages of legal evolution in the course of which primitive ideas may be discarded.  He sought to discover by comparative studies of different legal systems the ideas which they had in common.  He was aware of Roman Law, English Common Law and Hindu Law.  His first and most important ‘Ancient Law’ was published in 1861.

Henry Maine observed that there had been a parallel and alike growth and development of legal institutions and law in the societies of the East and West upto a certain age.  On the basis of the comparative studies he distinguished between static and progressive societies.  The early development both in static and progressive societies was roughly the same.  The early development, according to Maine falls into four stages.

The first stage is that of law making by personal command, believed to be of divine inspiration. eg. Themistes of ancient Greece, and the Dooms of the Anglo-Saxon kings.  The second stage occurs when those commands crystallize into customs.  In the third stage the ruler is superceded by a minority who obtain control over the law eg. the pontiffs of ancient Rome.  The fourth stage is the revolt of the majority against the oligarchic monopoly and the publication of the law in the form of a Code. eg. the XII Tables in Rome.

According to Maine Static societies do not progress beyond this point. Law is stable and society is also static.  In progressive societies, a general proposition of some value may be advanced with respect to the agencies by which law is brought into harmony with society.  These instrumentalities are three in number.

  1. Legal fictions
  2. Equity and
  3. Legislation

The characteristic feature of progressive societies is that they proceed to develop the law by these three methods.  These three instrumentalities constitute a machinery of change. Change may be effected judicially or through legislation. Judicial methods include use of fictions and equity.

Fiction: Maine defined fiction as ‘any assumption which conceals or affects to conceal the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified.

Fictions need to be distinguished from shifts in the meaning of words, for example, the word ‘possession’ was originally applied to physical control; then it came to be applied to situations where there was no physical control.  There was no pretence about the facts of either situation.

‘Adoption’ on the other hand, is not a shift in meaning, but name for a pretended fact, namely, that the adopted child was born into the family.  A more difficult case is that of the ‘corporate person’. One application of the word ‘person’ is to a human being, its application to a corporation is best treated as a shift in meaning.  Prof.Fuller declared the following motivations behind the use of fictions:

i) Policy: The point that most fictions in fact deceive no one weakens the charge of concealment. There are reasons of policy behind fictions. the rule that husband and wife are one. Even the old rule that a wife was deemed to have committed a crime under her husband’s compulsion was not introduced originally to deceive any one.

ii) Emotional conservatism: Fuller said this is the ‘judges’ way of satisfying his own craving for certainty and stability.

iii) Convenience: This consists of making use of existing legal institutions.

iv) Intellectual conservatism: Fuller said a judge may adopt a fiction, not simply to avoid discommoding current notions or for the purpose of concealing from himself or others the fact that he is legislating”.

Equity:  In one sense equity is synonymous with justice.  Maine defined it as “any body of rules existing by the side of original civil law, founded on distinct principles and claiming incidentally to supercede the civil law in virtue of a superior sanctity inherent in those principles.

One function of equity is to mitigate in various ways the effects of the strict law in its application to individual cases.  Another function is to procure a humane and liberal interpretation of law.

In English law, the question of conflict between common law and equity has been the subject of some controversy.  The Judicature Act, 1873 provided, generally in all matters not herein before particularly mentioned, in which there is any conflict or  variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail.  It is clear, therefore, that equity arises out of the process of law applying.  In Roman law, the rigidity and shortcomings of the civil law were remedied by the judges with the help of principles of equity.

Legislation:  As a general inference, Maine believed that no human institution was permanent, and that change was not necessarily for the better.  Unlike Savigny, he favoured legislation and codification.  With the rapid changes now taking place, this is the only efficient way of dealing with the problem. He recognised that the advance of civilization demanded an increasing use of legislation and he often contended that the confused state of English law was due to its pre-eminently judge-made character. Codification is advanced form of legislative development.

 Law Reform: There is a great deal of room for improvement, short of drastic change of the system itself.

Codification: This is a phenomenon which is found at various stages of development.  Undeveloped systems often start with codes.  Maine opened his classic work with the remark, “the most celebrated system of jurisprudence known to the world begins, as it ends, with a code.” Codification is said to provide a fresh start, but this must not be misunderstood.  ‘Fresh start’ cannot mean an entirely new kind of law.  Therefore, codification must be of the existing law and the question is what shape and form it should assume.