Henry maine theory of jurisprudence. Henry Maine and Anthropological School of Jurisprudence 2022-10-27
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Henry Maine was a 19th century legal scholar who is known for his theory of jurisprudence, which posits that the evolution of societies has a direct impact on the development of law. According to Maine, societies progress from a "status" to a "contract" mode of organization.
In societies with a "status" mode of organization, individuals are bound by their social position and the duties and obligations that come with it. These societies tend to be hierarchical, with a clear division between rulers and subjects. The law in these societies is often based on custom and tradition, and it is meant to maintain the existing social order.
In contrast, societies with a "contract" mode of organization are characterized by individual freedom and the ability to enter into agreements with one another. These societies tend to be more fluid and open, with a greater emphasis on individual rights and the rule of law. The law in these societies is often codified and written down, and it is meant to provide a framework for the fair and orderly resolution of disputes.
Maine argued that the transition from a status to a contract mode of organization is a natural and inevitable process that occurs as societies become more complex and technologically advanced. He believed that the shift from status to contract was a sign of social progress and that it was essential for the development of a just and orderly society.
Maine's theory of jurisprudence has had a lasting impact on legal thought and has influenced a number of important legal scholars and philosophers. It is still widely studied and debated today and continues to provide valuable insights into the nature of law and its role in society.
Maine, Henry Sumner
The concept of Volksgeist was served as a warning against the hasty legislation and introduce the revolutionary abstract ideas on the legal system. Savigny explained the relation between community and the law but Maine went further and pointed out. The new concepts of liberty, equality, freedom and individualism symbolize movement of progressive Indian society from status to contact. Constructing a methodology is also crucial. Friedman, fifth edition, page no. Historical school of Jurisprudence argued that the law is the exaggerative form of social custom, economic needs, conventions religious principles, and relations of the people with society.
Geography as well as kinship is now known to be a more or less important factor in all sociopolitical systems. He did not establish any theory or philosophy of the relation between the law and society. Livingston editors , Cross-cultural Understanding: Epistemology in Anthropology. These principles were invoked to remove the defects existing in the common law in England. It is closely associated with the morality and intention of God.
An aggregation of families constituted gens which in turn led to the formation of tribes and collection of tribe formed the community. It is established by John Austin. Early History of Institutions, Henry Holt and Company, 1875. According to Sir Henry Maine, fiction is a device to extend new rules to old situations, to new circumstances with a minimum of intellectual effect. . On the other hand, reformist social requests were to be found in Western Europe. The early evolution, according to Maine falls into four stages.
What is the theory of Maine and his contribution ?
It exists since the beginning of the world. Two complementary tensions present themselves as relevant to my discussion: the tension between freedom of contract and constitutional paternalism, and the tension between perfect contracting solutions and second-best alternatives. In course of time, equity became a system of law which reached maturity and impoliteness and finally the Judicature Act, 1873 amalgamated the common law courts and the chancery courts I. He was learned in English, Roman, and Hindu laws and also had the knowledge of Celtic systems. Frederick Pollock, one of the ardent supporters of historical school firmly believed that morals, as such were out of the domain of Judge or Jurist. Knowledge of the law in the hands of the priest In the third stage, the knowledge and administration of law go into the hands of the minority, usually of religious nature, because the original lawmakers have lost their power. He suggested that the law should answer the needs of the place and should change according to time, place and needs of the people.
It was realized that idea of freedom of contract between a powerful capitalist and a starving workman was ridiculous and hollow. Historical School laid emphasis on the formation of law by people through customs and habits, not by the judges and superior authority. His polar types were designed not only to represent extremes in a range of variable social forms but also to describe development in the dimension of time. Marching under a self-styled theoretical banner of Functionalism, Malinowski revolutionized fieldwork methods, cultivated an innovative style of ethnographic writing, and mounted polemical assaults on a wide array of academic disputes and public issues. The four essential parts of positive law according to him are command, sanction, duty and sovereignty.
A Critical Study on the Contributions of Sir Henry Maine
The workers now formed their associations and instead of individual freedom of bargaining their wages and facilities, their Trade Unions had the power of group bargaining. It is because of these different approaches that different concepts of law and consequently various schools of law have emerged. The power of the legislature to make laws has been widely accepted by the courts and the people all over the world. He started his career as Regis Professor of civil law in the University of Cambridge at an early age of twenty-five. He did not probe further into the relationship between law and society but pointed out that law must keep pace with the changing needs of the society.
This provided him an opportunity for the study of Indian Legal system. He has enriched our knowledge and understanding of legal history in several aspects. These social requests were dynamic and manageable to genuine change. In ancient societies, the slave, servant, ward, wife, citizen etc. He attributes to the concept of contract the same significance for Western politico-legal development that the imageless constructs of Western scientific thought have for technical advancement and considers modernization possible only if status-type social systems are replaced with universal contract relations. He laid the foundation of the historical school in France. 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.
Whereas Savings and his followers invoke history in the name of tradition, custom and nation against the belief n conscious and rational law making, the second movement, which one might call philosophical histories, develops a definite legal philosophy from the evolution of history. The custom wins in the ruler or greater part class. British statesman and lawyer, son of Edward Henry Carson, C. Law made by ruler under divine inspiration Under the first stage law is made by the ruler, he pronounces law in the form of commands. Maine's conclusions have been challenged over the past century.
Jurists of Historical School of Jurisprudence Montesquieu According to Sir Henry Maine, the 1st Jurist to adopt the historical method of understanding the legal institution was Montesquieu. There were some communities which followed matriarchal pattern in which the eldest female of the family was the central authority to manage the family affairs. It sets the articulation for a reformative law. 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. After looking into the history of legal development of various communities, one can easily say that the trend has not been uniform everywhere. Now there is greater interference of the state in the individual's activities. Â King was merely an executor of judgments of God, not the law-maker.