HENRY MAINE
EVOLUTIONARY APPROACH TO THE STUDY OF LAW
HENRY MAINE (1822-1888)
Source: https://www.britannica.com/biography/Henry
Maine/images videos#/media/1/358681/172499
HENRY MAINE
• Sir Henry James Sumner Maine was a British jurist and legal historian,
who pioneered the study of comparative law, primitive law and
anthropological jurisprudence.
• Main exponent the of British Historical School of Jurisprudence.
• Member of the Council of the Governor General of India (1863-69)
and he substantially contributed to codification of the Indian law.
• Works: Ancient Law Its Connection with the Early History of Society,
and Its Relation to Modern Ideas (1861); Early History of Institutions
(1875); Village(1864—1920)
Communities in the East and the West (1871);
Dissertations of Early Law and Custom (1883).
HENRY MAINE
• Maine made a comparative study of legal institution of various
communities and laid down a theory of evolution of law
• To trace and define his concepts, he drew on Roman law, western and
eastern European legal systems, Indian law, and primitive law.
• Maine made a significant contribution to law by indicating that there
has been a parallel and alike growth and development of legal
institution and law in the societies of the East and West up to a certain
stage.
DEVELOPMENT OF SOCIETIES
• Maine through his comparative study came to a conclusion that the
development of law and other social institution has been more or less
as an identical pattern in almost all the ancient societies belonging to
Hindu, Roman, Anglo Saxon, Hebrew and Germanic communities.
• Most of these communities are founded on patriarchal pattern
wherein the eldest male parent called the Pater familias dominated
the entire family.
• In his works, especially in Ancient Law (1861) Maine contrasted early
societies in which social relations are dominated by status with
“progressive” (complex) societies in which social relations are
predominantly determined by contract.
DEVELOPMENT OF SOCIETIES
• By status, Maine meant “a condition of society in which all the
relations of persons are summed up in the relations of family”.
• These relations are ascribed to the individual as a member of a kinship
group.
• By contract, Maine meant individual obligation arising “from the free
agreement of individuals”.
• Maine’s major proposition was that in early societies the individual
creates few or no rights for himself and few or no duties.
• Rather s/he is subjected to the traditional rules that govern his status
and to new rules which are issued as commands by the head of his
household.
DEVELOPMENT OF SOCIETIES
• With the progress of civilisation, this condition gradually gives away to
a social system based on contract.
• This system is characterized by individual freedom, in that “the rights,
duties and liabilities flow from voluntary action and are consequences
of exertion of the human will.
• A progressive civilisation in the view of Maine, is manifested by the
emergence of the independent, free, and self determining individual
as the primary unit of social life
• Progressive societies witnesses social and legal changes.
EVOLUTION OF LAW
• Maine attributes four phases in the development of law:
• Law made by the ruler under divine inspiration: Rulers are believed to be
acting under divine inspiration. The judgment of the king was considered to be
the judgment of God or some divine body.
• Evolution of customary law: At that point, the orders of the ruler was changed
over into standard law dependent on customs. Custom takes precedence over
the king’s authority.
• In the 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.
• Era of Codes In the fourth and last stage, the law is codified and systematized
with the discovery of art of writing.
TYPES OF SOCIETIES
• Two types, Static and Progressive Societies
• Static Societies are those that remain largely unchanged over long periods.
These societies adhere closely to tradition, and their social structures,
customs, and laws remain consistent across generations. They resist change
and innovation, often maintaining social order through rigid adherence to
established norms and customs.
• Law: In static societies, the law is primarily customary and unchanging.
These societies do not progress beyond the era of codified laws. There is
little room for the development of new legal principles or systems. The
legal system in these societies is deeply intertwined with tradition and is
resistant to external influences or internal reforms.
TYPES OF SOCIETIES
• Progressive societies are those that evolve and change over time,
often through technological advancements, economic development,
and social reforms. These societies are dynamic and adapt to new
circumstances, allowing for innovation and the development of more
complex legal and social systems.
• In progressive societies, law is constantly evolving. The transition from
customary law to codified law, and from status-based to contract-
based relationships, is a hallmark of progress. These societies are
characterized by legal systems that can adapt to new situations
through legal fiction, equity and legislation.
LEGAL FICTIONS
• Legal Fiction changes the law according to the needs of the society
without making any change in the letters of the law.
• Maine defines legal 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.
• Legal fiction enables the gradual development of the law by
stretching or reinterpreting existing rules to cover new situations.
• It allows for innovation within the framework of traditional legal
structures, maintaining continuity while subtly introducing change.
EQUITY
• According to 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.
• Equity helps in ensuring equity and remove rigidity and injustice from
society.
LEGISLATION
• Legislation refers to the process of creating new laws or amending
existing ones through formal legislative bodies such as parliaments or
assemblies.
• The legislation is the most effective and desirable method of legal
change.
• Legislation allows for clear, deliberate changes to the law, enabling
societies to address new challenges and complexities that arise.
E. ADAMSON HOEBEL (1906-1993)
Image source: https://www.jstor.org/stable/986725
INTRODUCTION
• Edward Adamson Hoebel was born in Madison, Wisconsin.
• He received his bachelors from the University of Wisconsin, a master's
degree from New York University and, in 1934, a Ph.D. from Columbia
University.
• Dr. Hoebel taught from 1929 to 1948 at New York University and from
1948 to 1954 at the University of Utah and later at the University of
Minnesota for 18 years.
• His books include "Anthropology: The Study of Man" (1949), “The law
of primitive man: A study in comparative legal dynamics” (1954), and
"The Cheyennes: Indians of the Great Plains" (1961).
THE LAW OF PRIMITIVE MAN
• He challenged the ethnocentric view that only modern, Western legal
systems are truly "lawful," showing that law in various forms is a
universal aspect of human societies.
• Instead of detailing the various forms of law, the author focuses on
the analysis of the functions of the law.
• He criticized the research methods of natural jurisprudence and
analytical jurisprudence and points out that the study of law by
anthropology is entirely behavioral and empirical.
THE LAW OF PRIMITIVE MAN
• Hoebel summarizes the three research methods of existing legal
anthropology, namely the concept method, description method and
case method.
• concept method refers to the method of collecting data (in the form of
questionnaires) to verify the original hypothesis by using the concept rules as
a starting point and a frame.
• Description method pay attention to the observation and description of facts
and special issues.
• Case method analyzes the settlement of disputes arising from cases, and
looks for the legal principles and procedures of the society.
• Hoebel believes that only case methods can lead to true jurisprudence
because the law matures in the troubles and anticipated difficulties.
THE LAW OF PRIMITIVE MAN
• A law which is always respected is full of customs. Otherwise, people
will not be able to tell which are the assumed rules and which are the
real legal ones.
• Professor Hoebel calls his method "functional realism His attitude
toward law arises from his general methodological postulate in
anthropology: "Our primary concern, it is true, is functional How does
the law work as a whole? Why does it work as it does? How and why do
its parts work as they do in relation to each other and to the cultural
totality and the social entirety?”
• Functional realism seeks for the anatomy of empirically observed social
systems and the physiology of the dynamics of the legal mechanisms
that are inseparable parts of the functioning whole.
TYPES OF LAWS
• Three types of laws: primitive law, ancient law, and modern law.
• Hoebel believes that all laws have three characteristics or constituent
elements: special power, bureaucratic power and regularity, although
they have different manifestations in different laws.
• "A social norm is legal if its neglect or infraction is regularly met, in
threat or in fact, by the application of physical force by an individual or
group possessing the socially recognized privilege of so acting.“
• According to this definition, the existence of the law does not
necessarily presuppose the existence of the state, as long as there is
some kind of agency that enforces it.
DEVELOPMENT OF LAWS
• Pointed out that the law has an evolutionary nature, although its
development path was not straightforward.
• He points out that inspite of the differences in the path of development
each national or ethnic law still has the same rules to follow.
• Second, he believes that as a tool of social control, the law increases with
the complexity of interpersonal relationships and the conflicts between
members.
• He said that the more civilized mankind is, the greater the need for law
and law is a product of social needs.
• Hoebel also looks into the future of legal development and he believes
that the laws of various countries in the world are moving in the direction
of integration.
FUNCTIONS OF LAWS
• Hoebel believes that the law performs the basic function of
maintaining the order of all societies except the simplest one
• He concretizes the functions of the law into four types:
• Firstly, it clarifies the relationship between individuals and maintains the
coordination and unity of society
• Secondly it stipulates the authority and methods to use power.
• Thirdly, it handles difficult cases and cleans up all social scum
• The fourth function of the law is the re-regulation of relations and the
reorientation of expectations.
