Historical School of Jurisprudence

“The ancient codes were doubtless originally suggested by the discovery and diffusion of the art of writing”

Sir Henry James Sumner Maine


The ideas of Sir Henry James Sumner Maine, an eminent Victorian anthropologist, and legal historian reflect a belief in progress characteristic of his time. His inquiries into the legal history of the Indo-European societies, linking the jurisprudence of the ancient world to contemporary legal conceptions, paved a way for definite improvement in social and legal institutions. Sir Henry Maine was the disciple of Savigny, who used historical jurisprudence to oppose the radical notions derived from the fancied Rights of Man, “History is the only true way to gain a knowledge of our own condition”, Savigny wrote in 1815. The Historical School of Jurisprudence describes the origin of the law. This school argues that the law was found not made. Kings Judgment, norms, and customs are the main source of law.

Early Life

Sir Henry Maine was Born in I822, he was educated at Christ’s Hospital and Pembroke College in Cambridge. Adequate Greek, Latin, and English verses were written by Maine at Cambridge, followed by the Morning Chronicle and the Saturday Review articles on foreign and domestic affairs of mild liberalism. He studied law and became a Professor of Civil Law at Cambridge in I847. From 1862 to 1869 he was a legal adviser to the Council of the Viceroy of India. Upon his return to England, Maine was appointed as Professor of Jurisprudence at Oxford. His important works are an essay on Roman Law and Legal Education in the Oxford and Cambridge Essays of 1856; Ancient Law, 1861, Village Communities, the Early History of Institutions, 1875, Early Law and Custom, 1883, Popular Government, 1885.[1] Maine studied the Indian legal system in-depth as a member of the council of the Governor-General of India from 1861 to 1869. Maine was largely responsible for the codification of the Indian legal system. Sir Henry Maine has worked on a plethora of legal topics which include – fraudulent behavior in Victorian commercial life, scientific theories, Darwinian theories of natural selection, systems of property law in Indian villages, the merits of the American Constitution, the politically conservative nature of women, the development of languages and many other areas.[2]

Historical School of Jurisprudence

In any event, with regard to historical jurisprudence, Sir Henry Maine introduced foreign ideas into English debates and, in others, he drew on alternative sources and used Victorian forms of legal writing. Today, in addition to his position as a writer on historical jurisprudence, Maine is also seen as a pioneer in the development of legal anthropology. He is remembered as a writer on early legal systems and is especially remembered for his controversial patriarchal theories of ancient law, which were subjected to intense attacks by other early nineteenth-century scholars such as L H Morgan. In the fifth chapter of Ancient Law, Maine explains the transition from Status to Contract.

“It is a Contract. 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 toward a phase of social order in which all these relations arise from the free agreement of individuals.”[3]

Sir Henry Maine classified the development of law into four stage

  1. At first, in Maine’s analysis, the largest groups comprised a few kinsmen presided over by a man who settled disputes and handed down punishments on an ad hoc basis with no firm rules relating to his decisions.
  2. Subsequently, these small groups were organised under chiefs and, over time, mutual kinship ceased to be the basis of their organisation and was replaced by a community established by a common tract of land.
  3. Eventually, in similar situations, the rulers pronounced the same judgments and thus developed rules.
  4.  Later, the development of writing encouraged the creation of codes of law.

But from this point onwards, we could divide societies into those that have progressed and those that have remained static. The former were few and, for Maine, it was possible to describe with some accuracy the essence of their radical reforms. Most significantly the law was altered by three consecutive instruments in reaction to changing social circumstances: legal fictions, equity, and statutes. [4]

  1. Static societies: societies that do not progress or develop their legal structure after the fourth stage of law development are Static societies. Static societies are not moving beyond the age of codes.
  2. Progressive Society: Societies that are moving forward after the fourth stage of law development are Progressive Societies. These societies develop their law with the help of the following instruments :
  3. Legal fiction: Legal fiction changes the law according to the needs of society making no changes to the letter of the law. Legal fiction harmonises the legal order but makes it difficult to understand the law.
  4. Equity: “Equity is a body of rules that exists alongside the original civil law and is based on separate principles.” Equity helps to eliminate rigidity and injustice.
  5. Statutes: statutes is the most efficient and desirable method of legal change. Laws will be enacted and officially put into effect.[5]

Sir Henry Maine’s conception of progressive evolution was motivated by his comparative study of legal history. From the study of Indian, Irish, German, and Roman Law, Maine’s conception of Progress as an intellectual activity has evolved, manifesting itself in the continued production of new ideas and promoting changes in social and legal institutions. Knowledge of Maine’s theories on the legal and social evolution of progressive societies enables us to understand more easily his idea of progress and the object of his influential critique of democratic institutions, found in the Popular Government,  one that had a considerable impact on the political thinking of the last quarter of the 19th century.[6]


No one can deny the importance of this analysis of legal developments. It is an explicit statement of one type of evolutionary view, and it is not surprising that it has created a wide-ranging debate. However, there are problems of classification in the relationship between this analysis and modern ideas. Although his achievements in this field were remarkable, he himself never claimed to be writing anthropology of any kind; it was later the writers who put his works in such a context. According to Sir Henry Maine Progressive societies have reflected a further series of evolutionary changes. The administration of law has been removed from the family and has become the function of the public court in this field of jurisprudence. Maine shows that progressive societies have adapted their laws to the requirements of social improvement through the use of legal tools of fiction, equity and legislation; and that the administration of law within such progressive systems of jurisprudence becomes the function of public courts sanctioned by the sovereign authority. Sir Henry Maine is significant because of the degree to which we now see him as having made more attempts to clarify the law by making wide-ranging references to non-legal topics. Sir Henry Maine always wrote primarily to a general audience, not to academicians. His Popular Government (1885) had an explicit political message, the bulk of his writing is still majestic in terms of accuracy and outlook. History must teach, he said, “that which every other science teaches, continuous sequence, inflexible order, and eternal”.

Frequently Asked Questions (FAQs)

  1. Give a brief introduction to Sir Henry Maine’s past life.
  2. Which are the four stages of development of law according to Sir Henry Maine?
  3. Explain the two types of society according to Sir Henry Maine.
  4. Name the instruments needed for the development of law.
  5. What did the historical school of jurisprudence propagate?


[1] Smellie, K. (1928). Sir Henry Maine. Economica, (22), 64-94.

[2]Cocks, R. (1988). Sir Henry Maine: 1822-1888. Legal Studies, 8(3), 247-257. 

[3]Kirk, R. (1953). The Thought of Sir Henry Maine. The Review of Politics, 15(1), 86-96.

[4]  Cocks, R. (1988). Sir Henry Maine: 1822-1888. Legal Studies, 8(3), 247-257.

[5] Bhola, S. (2019). Historical School of Jurisprudence. Blog.ipleaders.in.

[6] Smith, B. (1963). Maine’s Concept of Progress. Journal of the History of Ideas, 24(3), 407-412.

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