Henry Maine and Anthropological School of Jurisprudence

“The law does not fall from the sky.
It tends to develop as an expression of a society’s peculiar culture, and values.”

Introduction:

Sir Henry Maine evolved the anthropological approach to the historical school of jurisprudence and propounded the theory by stating “the movement of the progressive societies has hitherto been a movement from status to contract. Sir Henry Maine defined “Custom” as a natural predominant role in the formulation and advancement of law, justice, and procedure.

Maine’s deep knowledge of early society evolved his emphasis on man’s deep instincts, emotions, and habits in historical development. According to Maine, the law can be understood at a later stage in a slow-evolving pattern of growth. He believes that there are three stages in legal development in early societies – law as the personal commands and judgments of patriarchal ruler; law as a custom upheld by judgments; and law as code. The article vividly explains the anthropological school of jurisprudence and Henry Maine’s contribution towards the school of jurisprudence.

Historical Background

Sir Henry Maine was known as the founder of the 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. Maine departed from Savigny in two important respects.  He believed in the antique stages of legal evolution in the course of which primitive ideas may be discarded.  He ought 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 also 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 evolution of legal institutions and law in the societies of the East and West up to a certain age.  Based on the comparative studies he distinguished between static and progressive societies.  The early evolution both in static and progressive societies was roughly the same.  The early evolution, according to Maine falls into four stages.

Meaning of Jurisprudence

As indicated by Salmond, “Law is the name given to a specific sort of examination concerning a law, an examination of a theoretical, general and hypothetical nature which looks to expose the fundamental standards of law and the lawful framework.” Statute dissects legitimate ideas and attempts to discover the fundamental standards of law. It does not just break down the standards or the standards which are as of now known yet it likewise investigates and sets the establishment of new principles. It is an aftereffect of Jurists and savants thinking.

They are having the privilege of the opportunity to get to, dissect, and hypothesize about the lawful framework. In this way, it very well may be said as a reasonable exercise which is having no quick functional application. It sets the articulation for a reformative law. Statute interlinks laws with different orders like brain research, legislative issues, financial matters, and so on. Its extension is continually evolving. It isn’t gotten from any demonstrations of parliament or state get together. Master Tennyson calls it, Lawless subject of law. This investigation of ideas of law that incorporates the starting point of law, need of the law, the utility of the law concentrated by different Jurists is called Jurisprudence.

Anthropological School of Jurisprudence

The Anthropological School of the statute is the investigation of the human race, particularly of its root, advancement, customs, and convictions. The sociology that reviews the inception and social relationship of individual. Rough, genealogical social requests appear to require “law” in the structure that exists in assumed advanced social requests. The nonattendance of the foundations that we routinely cooperate with legitimate structure – courts, law execution masters, confinement offices, legal codes – provoked the end that these organizations were controlled by custom rather than law.

Anthropological law, which was first evolved as a particular control in the nineteenth century, has distinctively tested huge numbers of the standards of the positive perspective on law and, most pertinently for this examination, which has created the different speculations of lawful pluralism, talked about independently underneath under ‘The lawful pluralist approach’. Mains saw that reformist social orders develop the law by legitimate fiction, value, and enactment in this arrangement, has been disrespected to a limited degree, in as much as enactment has been discovered to be an early time of lawmaking with fiction and value coming in at a later stage.

Sir Henry Maine

Sir Henry Maine was the founder of the English Historical School of Law. Savigny’s views of Historical school were carried forward in England by Sir Henry Maine.

Major Works by Sir Henry Maine

• The first work of Maine’s was ‘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 studied the Indian legal system deeply as he was a law member in the Governor-General Council of India b/w 1861 to 1869. Maine’s ideas on the legal system were incorporated in the theories of Savigny and Montesquieu and he ignored what was abstract and unreal Romanticism. Maine favored legislation made by parliament and codification of law, unlike Savigny.

Maine represents the improvement of law in four phases:

• First stage 

Rulers are accepted to be acting under perfect motivation. Also, the laws are made on the sets of the rulers. For instance, Themes of antiquated Greek. The lord’s judgment was investigated to be the judgment of God or some awesome body. The ruler was only an agent of decisions of God, not the administrator.

• Second stage  

At that point, the orders of the Ruler was changed over into standard law dependent on customs. The custom wins in the ruler or greater part class. Customs appears to have prevailing to one side and specialists of the ruler

• Third stage

The data and association of customs goes into the equivalent hands of a minority, because of the weakening of the lawmaking power of the principal authorities like Ministers the data on customs goes heavily influenced by a minority class or typical class. Likewise, the ruler is replaced by a minority who obtains order over the law.

• Fourth stage

 In the fourth and last stage, the law is systematized and declared.

Customary Law

The huge point for the law authority is that nobilities were commonly the depositaries and chiefs of law they seem to have won to the privileges of the master, with the huge difference, regardless, they don’t appear to have 18 affirmed to organize inspiration for each sentence. The relationship of musings which brief the judgment of the male-driven ancestral pioneer to the attributed to excessively human record shows itself here moreover, there is the claim of wonderful beginning for the entire assortment of rules, or for a certain bit of it, anyway, the progression of thought no longer award the game plan of explicit discussions to be explained by the accepting an extra human intercession.

What the juristical government directly ensures is to partnerships the data of the laws to have the select responsibility for the head by which quarrels are picked. We truly appeared at the period of standard law. Customs or observances directly exist as an important aggregate and are believed to be effectively known to the honorable solicitation or cast.

Static and Progressive Societies

Maine further propounded that with the ultimate objective of the improvement of the law, society can be masterminded into two: static and reformist society. Static or fixed social requests didn’t move past code-based law. In this overall population, reference to the code reacted to each and every legal request. As shown by Maine, people from the overall population were quieted into the trust in the certitude of code and were, as such, hesitant to change the law. On the other hand, reformist social requests were to be found in Western Europe. These social requests were dynamic and manageable to genuine change. They accomplished the unforeseen development and verbalization of authentic establishments.

In the headway of law in reformist social requests, Maine recognized the brand name usage of three workplaces – genuine fictions, worth and sanctioning. Real fictions are straightforward theories highlighted achieving value by beating the rigidities of the customary law. As demonstrated by Maine, genuine fictions help with improving the brutality of the law. An old-style model he gave was the foundation of the Roman fiction of choice. He looked at an incentive as an assistant course of action of law. It ensured an unmatched holiness inalienable in its principles which exist one close to the next with the law. A significant part of the time, it could oust the law. Sanctioning addresses the last improvement of the law. It is an establishment through which various laws in the overall population are diminished into making or codes.  

Maine is known to have commented on “status” and “understanding”.  explaining this declaration, Maine said that in early events an individual’s circumstance in his get-together remained fixed; it was constrained, introduced, or acquired. He just wandered into it. He recognized such predetermination as he found it. He could neglect to address it. Later on, in any case, there came when it was attainable for an individual to choose his destiny through the instrumentality of arrangement. Never again was anything constrained on him from external forces; he was directly in charge: from servitude to serfdom, from status settled on entering the world, from expert specialist relationship to chief – agent understanding.

Criticisms of Henry Maine

Maine is criticized for distorting the nature and structure of early society for the accompanying reasons: Early society doesn’t show a perpetual example of development from the three-stage improvement of law – from individual orders and decisions of male-centric rulers through law as custom maintained by decisions to law as code. The supposed unbending nature of the law has over and again be tested by contemporary anthropologists who are of the sentiment that crude people groups were versatile and their laws adaptable.

Likewise, there were matriarchal social orders similarly as there were male-centric social orders. Moreover, it has been seen that status doesn’t really incline toward contract. Or maybe, the contrary advancement has been conceivable. For instance, social government assistance enactment in cutting edge nations is status-based. In the U.S., “governmental policy regarding minorities in society”, an arrangement that is predicated on Afro-Americanism, is status-based. Additionally, in Canada and the UK, the status of a single parent is perceived in law. End: Although Maine satisfied his verifiable duty, he disregarded the elements that have portrayed social orders across age.

Conclusion

The different legal scholars have added to the law and their work assisted with building up the law and society in general. On account of Savigny and Henry Maine’s they have added to Verifiable and Anthropological Law, The examination assists with improving the general public and amend the missteps of the past, it is constantly said that previous shows the exercise in present and help to improve what’s to come. The Incomparable law specialist Savigny and Henry Maine helped the world as an entire and prompting systemize the law their commitment is the achievement in the Statute.

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References:

1. Miss Manisha Naik, “Anthropological Approach Towards Jurisprudence”, Govind Ramnath Kare College of Law (Oct.7, 2020, 5:05 pm), http://www.grkarelawlibrary.yolasite.com/resources/LLM-LT-1-Manisha.pdf
2. Jurisprudence by Lloyd / Jurisprudence by Salmon Freedman
3. Sir-Henry-Maine-anthropological-approach