Sir Henry James Sumner Maine was a famous jurist of Modernized Historical
School of Jurisprudence i.e. Philosophical School of Jurisprudence. . He was appointed as the Regius Professor of Civil Law in
1847. He was known as the founder of the English Historical School of Law by
recognizing Savigny thoughts to England. He also helped in making laws in India
from 1863 to 1869 since he served as a member of the council of the
governor-general of India. Maine wrote many important books about law and
history, like Ancient Law, Village Communities, Early History of Institutions,
and Dissertation of Early Law and Custom. In 1869, he started teaching at the
University of Oxford. People in America thought highly of him, and he became a
member of a famous group called the American Philosophical Society. He died in
1888. Maine's work was very important and still inspires people who study law
today.
Stages of development of law-
- Law made by the ruler under divine inspiration-At first, people believed that the laws made by their rulers came from a divine power. This was true for many laws, including Muslim law.
- Customary law- At this stage, the orders given by the King became a normal way of doing things, and people started following them without thinking too much about it. This made them into customary law.
- Knowledge of law in the hands of priests- During this stage, as time passed, a small group of people or minority, often of a religious nature, became the ones who knew and enforced the customary laws. This happened because the original rulers who made the laws became weaker, and the people started relying more on the customs and traditions that had been established. So this small group took on the responsibility of keeping these laws alive and make sure that the people followed them.
- Codification- During this stage, laws began to be written down in the form of a code, such as the Twelve Tables in Rome. This made the laws easier to understand and follow because they were consolidated into a single document, rather than being passed down as customs or traditions.
Static and Progressive Societies-
- Static Societies: The societies that stop at the fourth stage of law, which is when they write down their laws in a code. They don't move on to any other stages and think that this is the last stage of their legal system.
- Progressive Societies: The societies that continues to develop their legal systems beyond the fourth stage of development of law, they are called progressive societies. They develop thier laws in three ways:
- Legal fiction is a way of changing the law to fit the needs of society without actually changing the words of the law.
- Equity refers to a set of principles that are believed to be more important than the actual laws themselves. It is used to make the law less strict or harsh, and more fair and just.
- Legislation is the final and most straight forward way of creating laws. It involves officially making new laws and putting them into effect for everyone to follow.
- Legal fiction is a way of changing the law to fit the needs of society without actually changing the words of the law.
- Equity refers to a set of principles that are believed to be more important than the actual laws themselves. It is used to make the law less strict or harsh, and more fair and just.
- Legislation is the final and most straight forward way of creating laws. It involves officially making new laws and putting them into effect for everyone to follow.
Status To Contact Theory
"THE MOVEMENT OF PROGRESSIVE SOCIETIES HAS HITHERTO BEEN A MOVEMENT FROM STATUS TO CONTRACT."
Meaning of Status and Contract-
In a static society, an individual's social status was based on their family background, specifically their father's family. They could not change their social class based on their own abilities, and they had to follow the customs and traditions of that class. For example, if Mr. X was born into a lower class, he would not have any opportunities to improve his status. On the other hand, if he was born into a higher class, he could have better opportunities. Where as, in a progressive society, individuals are seen as independent and capable of making their own decisions. They are free to make agreements and connect with whomever they choose. Their rights and obligations are based on their individual agreements and negotiations with others. This approach gives value to the idea of "Bentham's doctrine," which emphasizes individual freedom and choice.
Maine's Theory-
According to Maine's theory of social evolution, societies change
from being status-based to contract-based over the time. In a status-based
society, an individual's social status is determined by their family
background, and social mobility is limited. However, in a contract-based
society, individuals have more freedom to make their own decisions and enter into
contracts with others. This evolution from status to contract is driven by
changes in law and social attitudes. As societies become more complex, there is
a need for more flexible and adaptable systems of social organization, which
contract-based societies provide.
Criticism
Neglected the power of dynamics: Maine's theory neglects the role of power in legal evolution. It was argue that legal systems are often shaped by the interests of powerful groups within society, and are not simply the product of evolution.
Individualism centric: Some scholars argue that Maine's theory overemphasizes the role of individualism in legal evolution and fails recognise other factors in shaping legal systems.
Oversimplification of legal evolution: Critics argue that legal development is more complex and influenced by various social, economic, and cultural factors. For instance, some legal systems today have implemented social welfare policies that protect vulnerable groups, indicating a possible shift back towards a "status".
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