Q.11. What is the theory of Maine and his contribution ?
Ans. Maine (1822-1888) Maine made very valuable contribution to legal philosophy by way of historic comparative method. He was an erudite scholar of law. He started his career as Regius Professor of Civil Law in the University of Cambridge at an early age of twenty five. He was law Member in-the Council of the Governor General of India between 1861 and 1869. This . provided him an opportunity for the study of Indian legal system. From 1869 to 1877 he occupied the chair of historical and comparative jurisprudence in Corpus Christi College, Oxford. After that he held the distinguished post of the Master of Trinity Hall Cambridge.
‘Ancient Law’, ‘Village ‘Communities’, ‘Early History of institutions’, ‘Dissertation on Early Law and Customs’, are the important contributions made by him to legal thought and legal philosophy.
Stages of Development of Law
(1) Law made by the ruler under divine inspiration— In the beginning law was made by the commands of the rulers believed to be acting under the divine inspiration, as the inspiration by themistes in the Homeric Poems.
(2) Customary Law—In the second stage the commands crystallised into customary law.
(3) Knowledge of law in the hands of priests–The knowledge and administration of customs goes into the hands of a minority, usually of a religious nature, due to the weakening of the power of original law-makers. This is the third stage. (4) Codification—Then comes the era of codes. Now law is promulgated in the form of a code, as Solon’s Attic Code, or the Twelve Tables in Rome.
Static and Progressive Societies : Further development by legal fiction, equity and legislation.—The societies which do not progress beyond the fourth stage which closes the era of spontaneous legal development are static societies (as Maine calls them). The societies which go on developing their law by new methods are called progressive. Progressive societies develop their laws by three methods : legal fiction, equity and legislation. Legal fictions change the law according to the changing needs of the society without making any change in the letter of the ‘acv. There are innumerable examples of it in English and Roman law. Equity consists of those principles, which are considered to be “invested with a higher sacredness than those of the positive law.” It is used to modify the rigour of law. Legislation comes in the last which is the most direct and systematic method of law making.
Status disintegrated—As to the legal conditions prevailing at the end of general course of evolution, i.e., of static societies, Maine calls them ‘status’. The rights and liabilities of a member of the community depend on his belonging to a particular group in the community. For example, the rights and dudes of an individual in the family depend on his being a pater familias or a dependent, etc. In progressive societies the idea of status is disintegrated. There is a ‘gradual dissolution of family dependency and the growth of individual obligation comes at its place. The individual is steadily substituted for the family, as the unit of which civil laws take account.
Growth of the idea of contract—Gradually the institution of pater familias withers away gets more and more freedom and now rights and obligations depend on contract or free negotiations of the individuals. After tracing the course of development Maine propounds his important thesis : ‘The movement of progressive societies has hitherto been a movement from status to contract.’
Maine’s thesis true in his time—Maine was perfectly right when he propounded this thesis. Apart from the instances from ancient Roman law, during his own time he saw the emancipation of individual from status in England and in the Continent. In England, the position of married women improved. Many a civic disabilities on the ground of rel ig ion were removed by statutes. More freedom was given to servants to make. contracts. The Industrial Revolution turned many peasant communities into an industrial proletariat who had freedom to enter into contract with the employer. Maine witnessed also the triumph of the industrial North, a community more based, on free contract, over the agricultural and feudal South, more favouring status and retaining the institution of a very in the American Civil-War. These all made him to come to the conclusion that a progressive society moves from status to contract.
Theory no longer holds good : Individual freedom of contract curtailed—But then there came a counter-move, the signs of which were, apparent in the time of Maine himself. It was realized that idea of freedom of contract between a powerful capitalist and a starving workman was ridiculous and hollow. The organisations to protect the workmen came into existence. The employers too formed their association. Now, in place of individual freedom of contract there came a group bargaining. Apart from these a lot of social legislation has been passed which have fixed maximum working hours and minimum wages, and have laid down the rules regarding compensation and other condition- of service and the individual is bound by them.
Charges in the concept and functions of the State—Now, there have been great changes in the concept and functions of the state which have caused a growing interference into the activities of the individual by the State. 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. Individual cannot change any of the terms of these contracts. Parties enter into these contracts as members of social class and not as individuals. In modem times, contracts between government departments and private firms have become important which also are standard contracts and the terms are fixed before hand. The progressive opinion in every country is in favour of nationalisation of industries and services. The freedom of contract is. thus, being curtailed everyday.
No place for the theory in totalitarian states : Maine himself qualified his theory—In totalitarian states there has been a strong shift to the status again. In these countries no contract is allowed which is in any way not in consonance with the’state plan, or, is otherwise harmful to the society. From these observations and examples one may gather that the societies have not remained progressive (according to Maine’s thesis), but have become retrogressive. But Maine himself qualified his statement by the use of the word ‘hitherto. His theory was true during his time, and it was rather an echo of the individual’s development and ‘the formation of a capitalist class which demanded freedom of contract and labour. Another limitation of Maine’s theory which he himself mentioned is that it was not meant ‘to apply to personal conditions imposed otherwise than by natural incapacity.’
Maine’s view correct in one sense—In one sense Maine’s theory still holds good. The trend of legislation in countries which are undeveloped is still to remove personal disabilities which arise due to membership of a class (status). Hindu Acts of 1955-56 in India are examples of it. In the same way, labour laws and land laws passed during recent years have helped in emancipation of workmen and peasants. After looking into the history of legal development of various communities, one can easily say that the trend has not been uniform everywhere. So long as capitalism has stronghold, Maine’s theory holds good, but when its forces start withering away, there is just a contrary movement. In totalitarian states the freedom of contract is confined to narrowest limit and Maine’s theory does not apply there.
Contribution of Maine
Improved upon the theory of historical school—In Maine we find a very balanced view of history. Savigny explained the relation between community and the law but Maine went further and pointed out. the link between the developments of both and purged out many , of the exaggerations which Savigny had made.
Comparative study : Importance of Legislation : A balanced view—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. On the one hand, differing from Savigny.. Maine recognised legislation as a veiy potent source of law, and on the other hand, he avoided the excesses of philosophical school of Germany. He 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. Though many of the statements of Maine about primitive societies and the course of development of ancient law have been falsified by modern researches. Modem anthropologists have had the advantage of following the trial blazed by Maine and by others after him with the added advantage of being able to profit from the researches of fellow workers many directions.