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Explain and compare the theories propounded by savigny and henery Maine .

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Aman kannojia Dr. Ram Niwas Sharma
Savigny, a German jurist, is regarded as the founder of the Historical School on the continent i.e.
in Europe. The forerunner of Savigny had rejected natural law theory especially for two reasons:
First, by resurrecting the German mysticism and cultural ethos, they had already demolished the
supremacy and hegemony of natural law in the face of social and historical facts. It is dubbed as
unreal, imaginary and unhistorical. Second, the natural law principles of liberty, equity and
fraternity were no more sacrosanct as they were being violated by French revolutionaries
themselves by enslaving different communities of Europe. So was the fate of Germans and
Germany which was being attacked by French revolutionaries. So Savigny’s work has been an
open revolt and a reaction against the abstract, unhistorical natural law. Accordingly, he was
totally opposed to the said ideals of French Revolution which were a variant of natural law
principles. It was these principles that Napoleon was violating to enslave Germany under French
politico-legal domination. There were numerous factors which led Savigny to undertake
historical analysis of law and legal institution. Professor Thibaut, natural law jurist, wants to
accelerate political unification of divided Germany through the process of legal unification.
Thibaut wanted to give Germany a code perfect and complete in all respect and natural law
thinking. Undoubtedly, about was also imbued by the feeling of Patriotism and nationalism but
his perception of German legal code was conditioned by the Napoleonic Code. The hypothesis of
complete and perfect code for the whole Germany invited instant strong reactions from Savigny
and provoked him to profound his Immortal thesis of the origin and development of law and its
relationship to society; this thesis became the basis of historical Law School.

               

The center of Savigny’s stages was that the idea of a specific arrangement of law was an
impression of the soul of the individuals who included it. As indicated by him, the law of a
specific culture is the exemplification of the soul of individuals joined by basic language,
custom, sentiments and basic past to include and reproduce law. Therefore, the development and
advancement of law has no reliance upon individual discretionary will. Law is conceived in the
volk by mainstream soul. All laws are the indication of this normal cognizance. He states “law
develops with the development, and remaining with the quality of individuals, lastly diminishes
as the country loses its nationality”. Law has its source, presence and legitimacy in the well-
known awareness and internal emotions and its standard recognition isn’t the reason for law
however the proof of its reality. As indicated by him, law isn’t a fake, self-assertive, life less
mechanical gadget planned by a legal scholar to be forced from above. It is then again, a
complex quiet and undetectable yet unique experience produces showing itself in the ‘basic
sentiment of the internal need’ with which individuals respect it.

Criticism of Savigny’s View

The views of Savigny were criticized by many jurists:

Charles Allen

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

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.

Sir Henry Maine

Sir Henry Maine was the founder of the English Historical School of Law. Savigny’s views of
Historical school was carried forward in England by Sir Henry Maine.

Major Works by Sir Henry Maine.

The first work of Maine ‘Ancient Law’ was published in 1861.

He also wrote Village Communities (1871),

Early History of Institutions (1875)

Dissertations of Early Law and Custom (1883).

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.

The only certain point which can guide us here is the idea of infinite progression.”

“Law is founded and not made”, the adage is the premise of the historical school of law. The
historical school of law was established by Friedrich Karl and Von Savigny. As per this school,
the law is the formation of connections between the nearby circumstances and states of
individuals, the law isn’t established by any political prevalent yet found and given by
individuals.

Defenders of Historical schools place the traditions of the individuals as the significant
wellspring of law which ought not be disregarded. The verifiable school of law owes its
improvement to the authentic school of statute which accepts that as customs and propensities for
individuals change, the law ought to likewise grow as needs be. The chronicled school of law
dismisses the normal school of law and pragmatist school of law which gives accentuation on
God and judges as the significant wellspring of law.

Purposes behind the improvement of the historical school of law:

Sir Henry Maine was the founder of the English Historical School of Law. Savigny’s views of
Historical school was carried forward in England by Sir Henry Maine.

Major Works by Sir Henry Maine

The first work of Maine ‘Ancient Law’ was published in 1861.  

He also wrote Village Communities (1871),

Early History of Institutions (1875)  

Dissertations of Early Law and Custom (1883).  

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.

Maine describes the development of law in four stages:

First stage

Rulers are believed to be acting under divine inspiration. And the laws are made on the
commands of the rulers. For example, Themistes of ancient Greek. The judgment of the king was
considered to be the judgment of God or some divine body.  King was merely an executor of
judgments of God, not the law-maker.

Second stage

Then the commands of King converted into customary law. The custom prevails in the ruler or
majority class. Customs seems to have succeeded to the right and authorities of the king.

Third stage

The knowledge & administration of customs goes into the hands of a minority, Due to the
weakening of the lawmaking power of the original law-makers like Priests the knowledge of
customs goes into the hands of a minority class or ordinary class. And the ruler is superseded by
a minority who obtain control over the law.

Fourth stage

In the fourth and last stage, the law is codified and promulgated.

Static and Progressive Society

Static societies

Societies which does not progress and develop their legal structure after the fourth stage of
development of law are Static society. Static societies don’t progress beyond the era of codes.  

Progressive Society

Societies which go on progressing after the fourth stage of development of law are Progressive
Societies. They develop their laws with the help of these instruments:

Legal Fiction

Legal Fiction changes the law according to the needs of the society without making any change
in the letters of the law. Legal fiction harmonizes the legal order but made the law difficult to
understand.  

Equity

According to Maine, “Equity is a body of rules existing by the side of the original civil law &
founded on distinct principles”. Equity helps to remove rigidity and injustice.It came as a
response against the normal school of law which accepted that there are sure rules that are all
around pertinent without mulling over any social, verifiable or some other elements.It likewise
came as a response against the positivist school of law which accepted that law is made by the
sovereign and the individuals will undoubtedly comply with the laws regardless of whether the
law made is abusive
Applicability of Savigny’s Theory to India:                         

(i)       Federal Constitution: In a federal Constitution (there is a division of powers b/w the

federal/Central & the State Govts. & both r independent in their own spheres), law lacks a
‘national’ character as envisaged by Savigny.

(ii)      Source of Indian Constitution: The framers of Indian Constitution incorporated various

provisions of the Constitutions of world in order to avoid defects & loopholes that might come in
future such as (i) Chapter on F.R.s – U.S.A.; (ii) Parliamentary System of Govt. – U.K.; (iii)
Directive Principles – Ireland; & (iv) Emergency Provisions – Germany.  Since it has many
features borrowed from other nations, it does not fit properly in the Savigny’s scheme.

(iii)     Common law in India : The process of reception of English law through the agency of the
judiciary continued unabated – law of torts, doctrine of cruelty, etc.

(iv)     Deliberate legislation–making: In modern times, many new doctrines don’t always reflect
the popular consciousness, e.g., reservations for backward classes, uniform civil code, etc.

(v)      Judicial activism: Savigny ignored the creative function of the judges.  Judge-made law

(precedents) or judicial legislation is a common feature today.   

Savigny’s method of the historical school was followed in England by Sir Henry Maine, Lord
Bryce & many others who made studies of various legal systems on historical lines.  Maine
published his first work ‘Ancient Law’ in 1861.  This is considered to be the manifesto of his
lifework in which he stated his general doctrines.  He also wrote Village
Communities (1871), Early History of Institutions (1875) & Dissertations of Early Law and
Custom (1883).  He was law member in the Council of the Governor–General of India b/w 1861
& 1869, which provided him an opportunity for the study of Indian legal system.
Maine inaugurated both comparative & anthropological approaches to the study of law.  Unlike
Savigny, Maine favoured legislation & codification, he did not share Savigny’s mystique of the
Volksgeist & he used the study of legal history mostly to understand the past & not to determine
the future course & standards.

Maine classified the development of law in the following stages: 

(i)       In the beginning, law was made by the commands of the ruler believed to be acting under
the divine inspiration, e.g., Themistes of ancient Greek.  When a king decided a dispute by a
sentence, the judgment was assumed to be the result of direct inspiration.  The king was not the
maker of law, but merely an executor of judgments of the God.

(ii)      In the second stage, the commands crystallise into customary law.  Customs seem to have
succeeded to the prerogatives of the king.  Hwr, they don’t appear to hv pretended to direct
inspiration for each sentence & the progress of thought no longer permits the solution of a
particular dispute to be explained by supposing an extra–human interposition.

(iii)     In the third stage, the knowledge & administration of customs goes into the hands of a
minority, due to the weakening of the power of the original law-makers, usually of a religious
nature, e.g. priests.  The ruler is superseded by a minority who obtain control over the law.

(iv)     In the fourth stage, the law is promulgated in the form of a code.

Static & Progressive Societies:

The growth of law was on a uniform basis amongst the primitive societies upto a certain stage of
development.  The societies, which do not progress beyond the fourth stage & close the era of
spontaneous legal development, r static societies.  The stationary/static societies don’t move
forward beyond the era of the codes.

The societies, which go on developing their law by new methods, r called

progressive societies.  They develop their law with the help of three instruments / methods,
namely, legal fiction, equity & legislation, in order to make law harmonious to social needs &
change.

(i)       By use of legal fictions, law is altered to changing needs of the society, while it is
pretended that it remains what it was.  Thus, legal fictions change the law according to the
changing needs of the society without making any change in the letter of law.  He thought
fictions should be abandoned in a society because they made the law more difficult to understand
& harmonise legal order.

(ii)      Equity is used to modify the law as a set of principles invested with higher sacredness
than those of original law.  Equity came to remove the rigidity in law & to remove injustice,
delay & other inconveniences.  According to Maine, equity is a body of rules existing by the side
of the original civil law & founded on distinct principles.

(iii)     The final stage comes with the legislation, which is the last effective instrumentality of
quick social reform.  Law can be enacted by explicit declarations of intention incorporated in the
language of legal enactments.  Maine regarded it as the most desirable method of legal change.

In early societies–both ‘static’ & ‘progressive’, the legal condition of the individual is
determined by status, i.e., his claims, duties, etc. are determined by law.  The march of
progressive societies witnessed the disintegration of status & the determination of legal condition
of the individual by free negotiation on his part.  The development of societies was summed up
by Maine in the following famous phrase, “If we employ status to signify the conditions only &
avoid applying the term to said conditions, we may say that the movement of the progressive
societies has hitherto been a movement from status to contract”.

Conclusion:-
Historical School of Jurisprudence describes the origin of law. This school argues that the law
was found not made. The main source of law is Kings Judgment, Customs and habits. Jurists like
Montesquieu, Savigny, Sir Henry Maine, and Georg Friedrich Puchta are the supporter of the
Historical School of Jurisprudence. According to Sir Henry Maine, Montesquieu was the first
jurist of Historical school. Sir Henry Maine was the jurist of English Historical School. He was
more logical and accept the concept of Codification and legislation.

Savigny was the father of Historical school. He argued that Law is like language and have a
national character. Law is not universal. While Puchta improved the ideas of Savigny and argued
that both state and people are equally important and source of law.

From a condition of society, in which all the relations of persons wr summed up in the relation of
family, we seemed to hv steadily moved towards a phase of social order in which all these
relations arose from free agreement of individuals.

According to Maine, status is a fixed condition in which an individual finds himself without

reference to his will and of which he can’t divest himself by his own efforts.  The group, not the
individual, is the primary unit of social life.   With the progress of civilisation, this condition
gradually gives way to a social system based on contract.  This is the age of the standardised
contract & of collective bargaining (trade unions, business associations, etc.).  Even the
contracts, which an individual enters into in everyday life, have been standardised as contract for
water, electricity or contract for a carriage with a railway company.  The freedom of contract is,
thus, being curtailed every day.

Thus, Maine’s theory of ‘Status to Contract’ does not have much force in the modern age.  In
India, the policy of ‘mixed economy’ has assumed greater control over individual liberty &
freedom.  The State can impose reasonable restrictions in the interest of the public {Art. 19(6)}. 
Pollock says that this theory is limited only to laws of property because personal relations like
marriage, minor’s capacity, etc. are still matters of status & not of contract.

However, in one sense, Maine’s theory still holds good.  The trend of legislation in undeveloped
or developing countries is to remove personal disabilities, which arise due to membership of a
class (status).

On the whole, Maine presented a balanced view of history of law.  Savigny had explained the
relation b/w community & law, but Maine went further & pointed out the link b/w the
developments of both.  His conclusions are based on comparative study of different systems &
hence their value is greater than other studies based on Roman Law exclusively.  Influenced
Friedmann, Dicey, etc.

In the words of Dr. Friedmann: It can be concluded that the contribution of Maine is an
important piece of comparative legal research to a legal theory inspired by principles of historical
evolution.  His great contribution to legal theory specially lies in the combination of what is best
in the theories of both Montesquieu & Savigny.  Maine’s theory avoids the danger of an
excessive disintegration of theoretical laws of legal evolution.  It is also free from the abstract &
unreal romanticism, unlike Savigny’s theory.