Sir Henry Sumner Maine (1822-1888)

The founder and principal proponent of the English historical school of law, Sir Henry Sumner Maine was born in Scotland and died in Cannes, France. He was educated at Cambridge, and after various teaching positions in England and administrative appointments in India, he returned to Cambridge where he was elected master of Trinity Hall and ended his career as professor of international law.

He was among the first theorists to argue that law and legal institutions must be studied historically if they are to be understood. Different societies, he said, exhibit similar patterns of legal evolution.

One of Maine’s general laws of legal evolution is set forth in his classical treatise, Ancient Law:

The movement of the progressive societies has been uniform in one respect.

Through all its course it has been distinguished by the gradual dissolution of family dependency and the growth of individual obligation in its place. The Individual is steadily substituted for the Family, as the unit of which civil laws take account... . Starting, as from one terminus of history, from a condition of society in which all the relations of Persons are summed up in the relations of Family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of Individuals.

(Maine, 1861:170)

Thus, Maine arrives at his often-quoted dictum that “the movement of the progressive societies has hitherto been a movement from Status to Contract” (Maine, 1861:170).

Status is a fixed condition in which an individual is without will and without opportunity. Ascribed status (based on one’s position at birth) prevails, and legal relations depend on birth or caste. With the progress of civilization, this condition gradually gives way to a social system based on contract. Maine argues that a progressive civilization is manifested by the emergence of the independent, free, and self-determining individual, based on achieved status, as the primary unit of social life. He suggests that the emphasis on individual achievement and voluntary contractual relations set the conditions for a more mature legal system that uses legislation to bring society and law into harmony. In essence, his argument is that, in modern societies, legal relations are not conditioned by one’s birth but depend on voluntary agreements.

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