To have a clear and complete understanding of law, it is essential to understand the sources of law. Sources of law mean the sources from where law or the binding rules of human conduct originate. In other words, law is derived from sources. Jurists have different views on the origin and sources of law, as they have regarding the definition of law. As the term ‘law’ has several meanings, legal experts approach the sources of law from various angles. For instance, Austin considers sovereign as the source of law while Savigny and Henry Maine consider custom as the most important source of law. Natural law school considers nature and human reason as the source of law, while theologians consider the religious scripts as sources of law. Although there are various claims and counter claims regarding the sources of law, it is true that in almost all societies, law has been derived from similar sources.
Sir Henry James Sumner Maine (August 15, 1822 – February 3, 1888), a British jurist and legal historian, who pioneered the study of comparative law, primitive law and anthropological jurisprudence, is the main exponent the of British Historical School of Jurisprudence. He was a Professor of civil law at the University of Cambridge. He was a member of the Council of the Governor General of India (1863-69) and he substantially contributed to codification of the Indian law. He is famous for his notable work, Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas (1861). To trace and define such concepts, he drew upon Roman law, western and eastern European legal systems, Indian law, and Primitive law.
The law and the legal system are very important in any civilization. In modern times, no one can imagine a society without law and a legal system. Law is not only important for an orderly social life but also essential for the very existence of mankind. Therefore, it is important for everyone to understand the meaning of law. In a layman’s language, law can be described as’ a system of rules and regulations which a country or society recognizes as binding on its citizens, which the authorities may enforce, and violation of which attracts punitive action. These laws are generally contained in the constitutions, legislations, judicial decisions etc. Jurists and legal scholars have not arrived at a unanimous definition of law. The problem of defining law is not new as it goes back centuries. Some jurists consider law as a ‘divinely ordered rule’ or as ‘a reflection of divine reasons’. Law has also been defined from philosophical, theological, historical, social and realistic angles. It is because of these different approaches that different concepts of law and consequently various schools of law have emerged. Jurists hold different perceptions and understanding of what constitutes the law and legal systems. This chapter examines the various definitions of law as provided by different jurists.
SIR HENRY MAINE (1822-1888)
Maine made a comparative study of legal institution of various communities and laid down a theory of evolution of law. His method was a great improvement upon historical school and yielded fruitful results. Maine mad every valuable contribution to legal philosophy by way of historic comparative method. He was an erudite scholar of law. He started his career as Regis Professor of civil law in the University of Cambridge at an early age of twenty-five. He was law member in the council of the Governor General of India between 1861 and 1869. This provided him an opportunity for the study of Indian legal system. From 1869 to 1877 he occupied the chair of historical and comparative jurisprudence in Corpus Christi College, Oxford. After that he held the distinguished post of the master of trinity Hall, Cambridge.
The founder of English historical school of jurisprudence was Maine. His important works are Ancient Law 1861, Village Communities in the East and West 1871, Lectures on the Early History of Institution, 1874, and Dissertation on Early law and Custom, 1883. Maine made a significant contribution to law by indicating that there has been a parallel and alike growth and development of legal institution and law in the societies of the east and west up to a certain stage.
DEVELOPMENT OF SOCIETIES
Sir Henry Maine through his comparative study came to a conclusion that the development of law and other social institution has been more or less as an identical palta in almost all the ancient societies belonging to Hindu, Roman, Anglo-Saxon, Hebrew and Germanic communities. Most of these communities are founded on Patriarchal pattern wherein the eldest male parent called the Pater familias dominated the entire family. There were some communities which followed matriarchal pattern in which the eldest female of the family was the central authority to manage the family affairs.
According to Maine, Pater familias constituted the lowest unit of primitive communities. A few families together formed the family group. An aggregation of families constituted gens which in turn led to the formation of tribes and collection of tribe formed the community. The individual member of the family had no individual existence then his status. Maine arrived at his often quoted conclusion that “the movement of the progressive societies has hitherto been a movement from Status to Contract.” Status is a fixed condition in which an individual finds himself without reference to his will and from which he cannot divest himself by his own efforts. It is indicative of a social order in which the group, not the individual, is the primary unit of social life; every individual is enmeshed in a network of a family and group ties. With the progress of civilisation this condition gradually gives away to a social system based on contract. This system is characterized by individual freedom, in that “the rights, duties and liabilities flow from voluntary action and are consequences of exertion of the human will.” A progressive civilisation, in the view of Maine, is manifested by the emergence of the independent, free, and self-determining individual as the primary unit of social life.
Maine’s “status to contract” doctrine is by no means his only outstanding contribution to jurisprudence. He has enriched our knowledge and understanding of legal history in several aspects. Very interesting, for example, is his theory of law and lawmaking. He believed that in the earliest period law was created by the personal commands of patriarchal rulers, who were considered by their subjects to at under divine inspiration. Then followed a period of customary law, expounded and applied by an aristocracy or small privileged class which claimed a monopoly of legal knowledge. The third stage was marked by a codification of these customs as the result of social conflicts. The fourth stage, according to Maine, consists in the codification of strict archaic law by the help of fiction, equity and legislation; these instrumentalities are designed to bring the law into harmony with a progressing society. Finally, scientific jurisprudence weaves all these various forms of law into a consistent and systematic whole. Not all societies, said Maine, succeed in passing through all these stages, and their legal development in its particular aspects does not show a uniform line. Maine merely wished to indicate certain general directions and trends of development in the evolution of law. Modern research has shown that, on the whole, he has succeeded remarkably well in tracing some of the fundamental lines of a natural history” of the law.
Maine’s comparative analysis of legal evolution was supplemented in the early twentieth century by the historical studies of Sir Paul Vinogradoff. English historical research also produced such ripe fruits as Pollock and Maitland’s’ History of English Law before the time of Edward I and Holdsworth’s History of English Law, as well as a host of specialized treatises and monographs. What is lacking up to this day is a history of English law which closely correlates legal developments with the general political, social and cultural history of England.
DEVELOPMENT OF LAW
Maine studied the Indian legal system deeply as he was law member in the Council of the Governor-General of India b/w 1861 to 1869. Maine’s ideas were incorporated by the best things in the theories of Savigny and Montesquieu and he avoided what was abstract and unreal Romanticism.
Maine favored legislation and codification of law, unlike Savigny. He made a comparative study of the legal institution of various communities; his method was a great improvement upon the historical school and yielded fruitful results.
According to Maine law develops through stages. There are 4 stages to the development of law-
1. Law made by ruler under divine inspiration
Under the first stage law is made by the ruler, he pronounces law in the form of commands. The ruler is supposed to be acting on behalf of god and it is believed that all the commands issued by the king have a divine sanction.
2. Customary law
In the second stage, the commands crystallize into customary law. The next stage was reached when the office of the king or judge was inspired by the councils of chiefs. The priest became the depositories of law who circumscribed the king’s power and claimed the sole monopoly of knowledge. Therefore, the priestly class attempted to preserve the customs of the race or caste intact. Since the art of writing had not been invented so customs of the community became law for the people who were united by blood relationship. Thus we notice a particular important phenomenon. Maine’s theory of legal development conception of customs emerging posterior to that themester or judgments.
3. Knowledge of the law in the hands of the priest
In the third stage, the knowledge and administration of law go into the hands of the minority, usually of religious nature, because the original lawmakers have lost their power. In this stage of development of law, the authority of the king to enforce and execute law inspired by the priestly class claimed themselves to be learned in law as well as religion. The priestly class claimed that they memorized the rules of customary law because the art of writing had not developed till then.
The last stage is the codification stage, in this stage, all the earlier laws which were promulgated are now codified. The era of codification marks the fourth and perhaps the final stage of development of law. With the discovery of the art of writing, a class of learned men and jurists came forward to denounce the authority of priests as law givers. They advocated codification of law to make it accessible and easily knowable. This broke the monopoly of priest class in matters of administration of law. most important codes of the era were Twelve Tables of Rome, Manu’s code which were mixture of moral, religion and civil laws, Twelve Tables in Rome, Solon’s Attic code, Hebrew Code, the Codes of Hammurabi etc.
TYPES OF SOCIETIES
According to Maine, there are two types of societies, Progressive Societies and Static societies According to Henry Maine, when the primitive law has been embodied in a code, there is an end to its spontaneous development and such communities or societies which do not progress or go beyond the fourth stage are called static societies. Those societies which go beyond the fourth stage as developing their laws, by new methods are called progressive societies. There are three methods by which progressive societies develop their laws. They are;
LEGAL FICTION: According to this method, legal fictions, changes the law according to the changing needs of the society without aiming any change in the latter of law. Maine defines legal fiction as any assumption which conceals or affects to conceal the fact that a rule of law has undergone alteration, its letter remaining unchanged, its operation being modified. Legal fiction satisfies the desire for improvement but at the same time they do not offend the superstition, fear and dislike of change. At a particular stage of social development they are invaluable expedients of social progress for overcoming the rigidity of law.
Equity consists of principles which are considered to be invested with a higher sacredness than those of the positive law. Equity belongs to a more advanced stage than fictions. The interference with the law is open and avowed. It is a body of law existing by the side of the original civil law, founded on distinct principles claiming incidentally to supersede the civil law by virtue of a superior sanctity inherent in these principles.
Legislation is the most effective method of law making, it is considered to be the most systematic and direct method of introducing reform through new laws. The power of the legislature to make laws has been widely accepted by the courts and the people all over the world.
OTHER JURISTS’ THEORIES
According to Sir Henry Maine, the 1st Jurist to adopt the historical method of understanding the legal institution was Montesquieu. He laid the foundation of the historical school in France. According to him, it is irrelevant to discuss whether the law is good or bad because the law depends on social, political and environmental conditions prevailing in society. Montesquieu concluded that the “law is the creation of the climate, local situation, accident or imposture”. He was of the view that law must change according to changing needs of the society. He did not establish any theory or philosophy of the relation between the law and society. He suggested that the law should answer the needs of the place and should change according to time, place and needs of the people.
One of the best-known works of Montesquieu was his book ‘The Spirit of laws’. In this book, he represents his beliefs in political Enlightenment ideas and suggests how the laws are required to modify according to the needs of people and society.
Savigny is regarded as a father of the Historical school. He argued that the coherent nature of the legal system is the usually due to the failure to understand its history and origin. According to him, the law is “ a product of times the germ of which like the germ of State, exists in the nature of men as being made for society and which develops from this germ various forms, according to the environing the influences which play upon it.”
Savigny believes that the law cannot be borrowed from outside. And the main source of law is the consciousness of the people. He was of the view that the law of the state grows with the strengthening of the state nationality and law dies or fade away when nationality loosens its strength in the state.
Friedmann concludes the Savigny’s theory:
•Law is like language which eventually grows.
•Law cannot be of universal validity nor be constructed on the basis of certain rational principles or eternal principles.
•Law is sui generis. Savigny argued that law is like the language having its own national character. So, it can’t be universally applied and varies according to the people. He mentioned this in the self-written pamphlets “Vom Berufunserer Zeit für Gesetzgebungand Rechtswissenschaft (On the Vocation of Our Age for Legislation and Jurisprudence).”
•Law is found or discovered not made. It can’t be made artificially like the invention of an object.
Law is found on the basis of consciousness, customs and beliefs of the people.
Basic Concept of Savigny’s Volksgeist
Volksgeist means “national character”. According to Savignty’s Volksgesit, the law is the product of general consciousness of the people or will. The concept of Volksgeist was served as a warning against the hasty legislation and introduce the revolutionary abstract ideas on the legal system. Unless they support the general will of the people.
Basically, Savigny was of the view that law should not be found from deliberate legislation but should be made and arises out of the general consciousness of the people.
Criticism of Savigny’s View
The views of Savigny were criticized by many jurists:
Charles Allen criticized Savigny’s view that law should be found or based on the customs. Allen was of the view that customs are not the outcome of common consciousness of people. But they are the outcome of the interest of a powerful and strong of a ruling class. For example, slavery which was recognized and prevailed in certain societies by the powerful classes of society.
Prof. Stone criticized the Savigny and says that he (Savigny) ignored the efficiency of the legislation and planned law and social change. And over emphasized on the consciousness of people. For example, In India, the abolition of Sati and widow’s remarriage are brought in to change because of powerful and effective legislation.
By concluding this, this implication of historical school in terms of approach to law has been far-reaching. Some of the practical contributions of the historical school have had a long-lasting effect. It provided a great stimulus to the historical study of law and legal institution which has ingrained a sense of historical perspective. It highlighted the perils of an over-hasty legislative experiment and has taught a lesson that development should flow, in some spheres at any rate, within the channels of tradition. It also tried to show some connection between cultural evolution and some parts of the law, and the need to look into the past in order to get a proper understanding of the law in modern times.