Historical School Flashcards
What is the anthropological approach?
Sir Henry Maine took a historical approach to jurisprudence that involved examining the progression of society and its laws through the lens of anthropology. He wanted to discover whether a pattern of legal development could be extracted from a comparative analysis of different systems like the roman and common law system.
What was Maine’s understanding of the laws of historical development?
Maine believed that there were static and progressive societies. Both develop initially in the same manner.
1. Law Making by personal command, believed to be with divine inspiration. Eg: Dooms of the Anglo-Saxon Kings
2. Those commands then crystallise into customs over time.
3. The ruler is superseded by a minority who obtains control over the law. Eg. the oligarchs.
4. The oligarchs are overthrown by the majority (a revolution).
This leads to the publication of law as a code.
What is the difference between static and progressive societies according to Maine?
According to Maine, static societies don’t proceed beyond this development. Progressive societies further proceed by developing law through fiction, equity and legislation.
What is Maine’s main generalisation?
The movement of progressive societies has hitherto been a movement from status to contract.
this means that in both static and progressive societies, the individual’s legal condition is first determined by status. His claims, duties, liberties are determined by the law. In progressive societies, such status is disintegrated and the law confers condition on the individual via free negotiation on his part. For example, in English law the bonds of serfdom and feudal labour were abolished and employment became a contractual relationship.
How has there been a return to status?
The individual is no longer able to negotiate his own terms. The age of standardised contract and of collective bargaining.
What are the two criticisms of Maine’s theory of historical development of law?
- It’s is based on anglo-saxon societies. Maine assumed that there was a gradual shift in all societies that involved progression from King-Feudal Lord-Charter of Magna Carta- asserting rights - Revolution - Modern Society. This ignores the existence of other societies like in the Indian subcontinent where the republican system took precedence over monarchical regimes.
- Suffers from colonial gaze. Maine assumed that laws and march from primitive to progress happens naturally and organically in all societies, but in colonised countries of the third world, such march didn’t happen organically but rather it was brought about through colonial gaze (forcing the people to look at something in a certain way, the colonisers forcing the colonised to think something is legal and illegal. Eg; Macauley imposing IPC).
Other criticisms of Maine’s Theory?
Too simplistic and reductive,
Did not provide any anthropological evidence to support his claims
Considers society as a static concept and discounts the possibility of changes and transitions that might arise in the same.
