Sir Henry James Sumner Maine (August 15, 1822 – February 3, 1888) was an English comparative jurist and legal historian. Influenced by his experiences in India, Maine compared Eastern and Western ideas, finding common threads in the development of society. His work investigated the early development of law, introducing the notion that societies moved from being bound by social status in their relationships, to independent individuals who were free to make contracts with other individuals. Although many of his ideas on the development of law have been discredited, Maine’s work on the history of jurisprudence greatly contributed to an understanding of how legal systems have developed over time. His emphasis on the social factors involved in legal transactions laid the foundation for later work in the sociology of law, and is valuable in providing insights into the nature of social structure that supports peaceful, harmonious human relationships.
Henry James Sumner Maine was born on August 15, 1822, in Leighton, England, into the family of Dr. James and Eliza Maine. After his parents separated, Henry moved with his mother to Henley-on-Thames, where he spent his childhood. He was educated at Henley and Christ’s Hospital, where he showed great intellectual abilities and earned a scholarship to Pembroke College, University of Cambridge, in 1840.
At Cambridge he was one of the most brilliant classical scholars of his time. He won numerous prizes and medals, among which were the Craven scholarship, Chancellors Senior Classical Medal, and medals in Latin Composition, Greek, and English Verse. He graduated from Cambridge in 1844.
Shortly afterwards Maine accepted a tutorship at Trinity Hall, Cambridge. In 1847, he was appointed regius professor of civil law, and was called to the bar three years later. He remained in Trinity Hall until 1854.
In 1847, Maine fell in love with his cousin, Jane Maine, and married her the same year. The couple had two sons.
In 1852, Maine had become one of the readers appointed by the Inns of Court, teaching Roman law and jurisprudence. Lectures delivered in this capacity served as the groundwork for his masterpiece, Ancient Law, published in 1861, which made him world-famous. Within a year of its publication, a post on the council of the governor-general in India was offered to Maine, then a junior member of the bar with little practice, few advantages of connection, and no political or official claims. Maine declined the first time, on grounds of poor health. However, when the very next year the office was again vacant, Maine was persuaded to accept, not because his health had improved, but that he thought India might not make it much worse.
It turned out that India suited him much better than Cambridge or London. He worked as the adviser to the government, counseling on the wide variety of issues, including the land settlement of the Punjab region, the introduction of civil marriage to provide for the needs of unorthodox Hindus, as well as the question of how far the study of Persian language should be required among European civil servants. Plans of codification were prepared, and largely shaped, under Maine's direction, which were implemented by his successors, James Fitzjames Stephen and Whitley Stokes. All this was in addition to the routine of legislative and consulting work and the establishment of the legislative department of the government of India. He also served as vice-chancellor of the University of Calcutta. Maine stayed in India for five years and was asked to prolong his services beyond the regular term. He returned to England in 1869.
In 1869, Maine was appointed to the chair of historical and comparative jurisprudence newly founded in the University of Oxford at Corpus Christi College. Residence at Oxford was not required, and the election amounted to an invitation to the new professor to resume and continue in his own way the work he had begun in Ancient Law. During the succeeding years Maine published the principal matters of his lectures in a carefully revised literary form: Village Communities in the East and the West (1871); Early History of Institutions (1875); Early Law and Custom (1883).
Maine became a member of the secretary of state's council in 1871, and remained so for the rest of his life. In the same year he was appointed a Knight Commander (KCSI) of Order of the Star of India.
In 1877, the mastership of the Trinity Hall, Cambridge, became vacant and Maine was invited to accept the post. His acceptance entailed the resignation of the Oxford chair, though not continuous residence at Cambridge. Ten years later, he was elected to succeed Sir William Harcourt as Whewell professor of international law at Cambridge. His brilliant performance in this office was represented by a posthumous volume, International Law (1888).
Maine's health, which had never been strong, gave way towards the end of 1887. He went to the French Riviera under medical advice, and died at Cannes on February 3, 1888. He left a wife, Jane, and two sons, of whom the elder died soon afterwards.
Henry Maine’s most important work was his 1861 Ancient Law. In it, he compared legal systems of primitive societies, ancient Rome, European countries, and India, in order to find some general principles of law. As Maine put it in the preface, the purpose of his book was:
… to indicate some of the earliest ideas of mankind, as they are reflected in ancient law, and to point out the relation of those ideas to modern thought (Ancient Law, 1861)
Maine introduced the idea that law and society developed "from status to contract." In ancient times, individuals were bound by social status and/or belonging to traditional social castes. On the other side, in the modern world, people were regarded as independent entities, free to make contracts on their own. Maine saw Roman law as the intermediate stage between ancient customs and modern British law. He believed that in ancient times legal bonds were firmly connected with customs rooted in the patriarchal family system. In that system all the goods, including land and the means of production, were the property of a family, and private property was practically non-existent. It was only in more recent times, with the development of settlements and later towns, that society started to apply principles of private property and depend on contract as means of creating larger and more complex relationships.
Maine did not approve of the idea that law actually progressed throughout human history, and that democracy was a superior form of government. Maine had published, in 1885, his work of speculative politics, a volume of essays on Popular Government, designed to show that democracy was not in itself more stable than any other form of government, and that there was no necessary connection between democracy and progress. The book was deliberately unpopular in tone; it excited much controversial comment and some serious discussion. He wrote:
… the inquiry into the history of these [political] institutions, and the attempt to estimate their true value by the results of such an inquiry, are seriously embarrassed by a mass of ideas and beliefs which have grown up in our day on the subject of one particular form of government, that extreme form of popular government which is called Democracy. … [These ideas and beliefs] are well known to have sprung from the teaching of Jean Jacques Rousseau, who believed that men emerged from the primitive natural condition by a process which made every form of government, except Democracy, illegitimate. … Democracy is commonly described as having an inherent superiority over every other form of government. … It is thought to be full of the promise of blessings to mankind; yet if it fails to bring with it these blessings, or even proves to be prolific of the heaviest calamities, it is not held to deserve condemnation. These are the familiar marks of a theory which claims to be independent of experience and observations (Popular Government, 1885).
Many believed that Maine particularly resented late Victorian mass democracy, and advocated instead laissez-faire economic individualism.
Living for more than seven years in India, Maine came in contact with Eastern ideas, and was able to compare them to Western thought. His Village Communities in the East and the West (1871); Early History of Institutions (1875); Early Law and Custom (1883) compared those two systems of thought, finding numerous similar points. In all these works the phenomenon of societies in an archaic stage, whether still capable of observation or surviving in a fragmentary manner among more modern surroundings or preserved in contemporary records, are brought into line, often with singular felicity, to establish and illustrate the normal process of development in legal and political ideas.
Henry Maine was a brilliant thinker whose ideas not only influenced the fields of law and legal affairs, but left a mark on anthropology and comparative history. Because of his study of the early development of law and the connection between law and social status, Maine can be seen as one of the forefathers of modern sociology of law.
Although many of his ideas on the development of law have been discredited, Maine’s work on the history of jurisprudence greatly contributed to our understanding of how legal systems developed over time.
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