Henry James Sumner Maine
Sir Henry James Sumner Maine was a leading nineteenth-century English jurist. Maine's writings on the social and historical bases of all legal
systems have been recognized for their clarity of thought and style, although modern commentators have criticized Maine for overgeneralization.
Maine was born August 15, 1822, in Kelso, Scotland. In 1844, he graduated from Cambridge University, where he tutored until he was appointed to be a professor of CIVIL LAW in 1847. He criticized LEGAL EDUCATION for teaching practical skills rather than the analysis of law as a science. His legal practice was limited, as he concentrated on publishing legal and political writings.
Maine first achieved prominence with the publication of Ancient Law in 1860. Ancient Law traced the historical development of law in the ancient world. Maine argued in it that there are two types of societies: static and progressive. Static societies include most of the non-Western world. He believed that countries such as India and China were locked in an unchanging world, bound by a fixed legal condition dominated by family dependency. In those societies, laws had very limited application and were binding not on individuals but on families. The rule of conduct for the individual was the law of the home, as distinguished from civil law.
In contrast, Maine proposed, European societies were progressive, characterized by a desire to improve and to develop. In progressive societies, civil law grew as a greater number of personal and property rights were removed from the domestic forum to the public tribunal. Maine saw the distinguishing feature in this movement as the gradual dissolution of family dependency and its replacement by individual obligation—as a movement from personal conditions to agreement, from status to contract.
Maine believed that the modern legal order would make talent and ability more important than race, sex, or family in shaping personal status. His beliefs in the evolution of Western law, and progress in general, struck a chord in the Anglo-American legal community. His theories were attractive to those in the United States who saw a powerful national economy reshaping society and creating opportunity for those who were willing to take risks and to work hard.
Maine took a hiatus from his professorship in 1863, to serve as a legal member of the Viceroy's Council in India for six years. Upon his return to England in 1869, he resumed his legal scholarship, publishing Village Communities in 1871, The Early History of Institutions in 1875, and Early Law and Custom in 1883.
Maine's conclusions have been challenged over the past century. Historians and social scientists have pointed out that many of his interpretations are false and based on limited information. Despite these perceived shortcomings, Maine is still regarded as a seminal figure in JURISPRUDENCE. His use of historical and anthropological methods was groundbreaking, and his strong conceptual framework helped to reshape the way in which legal developments are analyzed.
Maine died February 3, 1888, in Cannes, France.
Cocks, Raymond. Sir Henry Maine: A Study in Victorian Jurisprudence. 1988. Cambridge: Cambridge University Press.