By Somesh Mahajan
Sir Henry Maine was born on August 15, 1822, in Scotland. He received his education at Christ’s Church and Pembroke College in Cambridge, receiving his degree in 1844. After serving a time as a tutor and teacher, most notably of civil law at Cambridge, he began practicing law in 1850. Brought up in the upper strata of British society, Sir Henry Maine was not in the very least a liberal. What makes him stand out as one is the fact that his ideas coincided with the liberals’ demands for economic reforms.
It was in 1861 that his book Ancient Law was published, an achievement that placed him amongst the leading intellects of the Victorian era. One of Britain’s great statesmen and judicial officials, Maine wrote the foundations for the laws of modern India and several other British colonies, as well as affecting the judicial system in his native land. The task of formulating and organizing the law and legal system in India fell to him because of his experience there. In 1863, two years after writing his first book, he left for India. Until 1869 he served both as a legal member of the Council in India and as the vice-chancellor of the University of Calcutta.
As though not to be outdone by his own deeds, Sir Henry spent most of the next decade, the 1870s, on the daunting task of writing the foundations for the laws of modern India and formulating a general scheme for the codification of Indian law. He also organized the legislative department of Indian government. After his return home, he successfully held two important professorial chairs: of jurisprudence and of international law. His lectures entitled Village Communities in the East and West (1871) developed, with a breadth and luminousness peculiar to the author and on a comparative basis largely supplied by his knowledge of India in especial, the conclusions of Maurer and Nasse. A second course, entitled The Early History of Institutions (1875), applied the same method to a still more extensive field of research. His lectures on international law, which entered into the question of arbitration as a preventive of war, Maine, unhappily, did not live to see through the press.
His method was a remarkably attractive one; but he lacked the time, and, perhaps, the inclination, for the closer investigation required for a historical treatment of certain of his subjects. Maine occupied himself primarily with exploring the evolution and development of law. In his first book he was already drawing connections between the belief that laws cannot merely be legislated and created, but involve a nation’s culture and tradition and assessing the worth of a subject in relation to other subjects by comparison with them. Putting his experiences outside England to good use, he also tried to discover how different societies produced different legal codes. He postulated that early law contained all elements of future law, because older law is the only objective standard by which to improve and create it.
His particular view was that that citizens of a society were bound to obey their king under a social contract was a fairly new, rather simplified western concept. The legal explanations that went into explaining the sovereignty of the rulers, Maine insisted, ignored opinions, sentiments, beliefs, superstitions, and prejudices that were a part of society. He also wrote that most societies never went past the point of having customary laws, or what he called the “era of codes,” which he explained to be an era of history marked by tradition and societal belief guiding law. In more advanced societies he held that law went through a series of changes by means of spontaneous creations of law (‘fictions’), a body of rules based on the principles of natural justice (‘equity’), and the systematic consensus on the enactment of law (‘legislation’). This last he felt was the most efficient means for changing and creating laws, though he argued with increased freedoms and advances, the nature of the laws themselves would have to change. Laws would have to be more liberal and progressive to allow the course of judicial and social progress in advanced societies to continue.