Sir Henry Maine

lawzmag.comSir Henry Maine was the British jurist and legal historian who pioneered the study of comparative law, notably primitive law and anthropological jurisprudence.

His work investigated the early development of law, introducing the notion that societies moved from being bound by social status in their relationships, to independent individuals who were free to make contracts with other individuals. Although many of his ideas on the development of law have been discredited, Maine’s work on the history of jurisprudence greatly contributed to an understanding of how legal systems have developed over time. His emphasis on the social factors involved in legal transactions laid the foundation for later work in the sociology of law, and is valuable in providing insights into the nature of social structure that supports peaceful, harmonious human relationships.

As the member of the council of the governor-general of India between year1863 to 1869, Maine was largely responsible for the codification of Indian law. He also organized the legislative department of Indian government.In 1869 he became the first professor of comparative jurisprudence at the University of Oxford and, in 1887, a professor of international law at Cambridge. He was knighted in 1871.

Henry Maine’s most important work was his 1861 Ancient Law. In it, he compared legal systems of primitive societies, ancient Rome, European countries, and India, in order to find some general principles of law. As Maine put it in the preface, the purpose of his book was:

… to indicate some of the earliest ideas of mankind, as they are reflected in ancient law, and to point out the relation of those ideas to modern thought (Ancient Law, 1861)

Living for more than seven years in India, Maine came in contact with Eastern ideas, and was able to compare them to Western thought. His Village Communities in the East and the West (1871); Early History of Institutions (1875); Early Law and Custom (1883) compared those two systems of thought, finding numerous similar points. In all these works the phenomenon of societies in an archaic stage, whether still capable of observation or surviving in a fragmentary manner among more modern surroundings or preserved in contemporary records, are brought into line, often with singular felicity, to establish and illustrate the normal process of development in legal and political ideas.

Maine used the study of legal history mostly to understand the past and not to determine the future course and standards, and in this field he made valuable contributions to legal theory Later researches in anthropology have brought new facts into light which do not support Maine’s view of the course of legal development but even then his work is creditable for his approach. Maine made a comparative study of various legal systems and traced the course of their evolution.

Sir Henry’s great reputation as a philosophical jurist is due, in the first instance, to his work entitled Ancient Law and strengthened by his legislative services as legal member of the council of India.


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