ANALYTICAL SCHOOL OF JURISPRUDENCE

ANALYTICAL SCHOOL OF JURISPRUDENCE 

Positivism 

The Analytical School of jurisprudence, rooted in positivism and influenced by figures like Auguste Comte, aims to separate law as it exists from how it should be. This fundamental approach departs from older views that tied law to natural or divine principles. Instead, it focuses on empirically observing legal facts, akin to methods in natural sciences. This shift arose alongside the modern state’s consolidation of legal authority, demanding organised legal systems and hierarchical structures. 

Central to Analytical Jurisprudence is its mission to distil enduring legal elements from vast material, organising them into abstract systems or classifications. This analytical process not only breaks down legal subjects into fundamental components but also clarifies their relationships within the broader legal framework, such as between law and equity. This systematic study, championed by Bentham, Austin, and others, seeks to bring coherence to legal systems fragmented by precedent and statutes. 

In the United States, John Chipman Gray notably refined Austin’s theory, asserting that judges, not legislative bodies, primarily shape the law through judicial decisions. Gray argued that courts, by interpreting statutes and applying them to specific cases, effectively create law. He emphasised that the meaning and application of statutory law gain clarity only through judicial interpretation. This perspective elevated judge-made law as the definitive expression of legal principles, asserting that judicial rulings constitute the true embodiment of law in society. 

Overall, the Analytical School’s approach to jurisprudence underscores the importance of empirical analysis and systematic categorization in understanding and developing legal principles, steering away from metaphysical or theological underpinnings towards a pragmatic and structured legal framework shaped by judicial interpretation and application. 

JEREMY BENTHAM(1748-1832) 

Jermy Bentham heralded a new era in the history of legal thought in England. He is considered to be the founder of positivism in the modern sense of the term. It has been rightly said that Austin owes much to Bentham and on many points his propositions are merely the “Paraphrasing of Bentham’s theory”. Bentham’s classic

work reveals that truly speaking he should be considered to be the father of analytical positivism and not John Austin as it is commonly believed. 

Bentham was the son of a wealthy London Attorney. His genes were of rarest quality. He was a talented person having the capacity and acumen of a jurist and a logician. Dicey in his book, “law and Public opinion in the 19th century”, has sketched Bentham’s ideas about individualism, law and legal reforms which have affected the growth of English law in the positive direction. The contribution of Bentham, to the English law reforms can be summarised thus- 

“He determined in the first place, the principles on which reforms should be based. 

Secondly, he determined the method, i.e., the mode of legislation by which reforms should be carried out in England.” 

He defined law as; 

“A law may be defined as an assemblage of signs declarative of a violation conceived or adopted by the sovereign in a state, concerning the conduct to be observed in a certain case by a certain person or class of persons, who in the case in question are supposed to be subject to his power: such volition trusting for its accomplishment to the exception of certain events which it is intended such declaration should upon occasion be a means of bringing to pass, and the prospect of which it is intended should act as a motive upon those whose conduct is in question.” 

Individualism; Utilitarianism.- Bentham’s legal philosophy is called ‘utilitarian individualism’. He was an individualist. He said that the function of law is to emancipate the individual from the bondage and restraint upon his freedom. Once the individual was made free, he himself shall be looking after his welfare. In this way, he was a supporter of the ‘lassiez faire’ principle of economics. He pleaded for codification and condemned judge-made law and customs etc. he was a utilitarian also. According to him, the end of legislation is the ‘greatest happiness of the greatest number.’ He defined utility as the property or tendency of a thing to prevent some evil or to procure some good. The consequences of good and evil are respectively pleasure and pain. His philosophy may be summed up, in his own words, as follows;- 

“Nature has placed man under the empire of pleasure and pain. We owe to them all our ideas; we refer to them all our judgments, and all the determination of our life. He who pretends to withdraw himself from his subjection knows not what he says. His only object is to seek pleasure and to shun pain… These eternal and irresistible sentiments ought to be the great study of the moralist and the legislator. The principle of utility subjects everything to these two motives.”

The purpose of law is to bring pleasure and avoid pain. Pleasure and pain are the ultimate standards on which a law should be judged. All consideration of justice and morality disappear from this approach. For Bentham the right relationship between positive law and morality or moral criticism was expressed in the maxim: “Obey punctuality, censure freely”. 

Bentham was a realist and his activities were many-sided. His keen desire for law reform based on the doctrine of utility, his ambition for codification based on complete dislike for judge-made law filled his work with a sense of mission. “His work was intended to provide an indispensable introduction to a civil code. He criticised the method of law making, corruption and inefficiency of the administration of justice and restraints on the individual’s liberty. 

Bentham, despite his occasional naivetes, was a profound thinker, an acute social critic, and an untiring campaigner for the reform of antiquated law, and he became, and had indeed remained, one of the cardinal influences on modern society. By rejecting both natural law and subjective values and replacing these by standards based on human advantages, pleasures and satisfactions, he provided what may be, as many think, an insufficient substitute for ethics of aesthetics, but was at least a valuable sign post by which men in society might direct the external welfare of the society. Bentham himself was a believer in Laissez faire once the antiquated legal system had been renovated, but ironically, his emphasis on reform and social welfare has made him one of the creators of the modern collectivist welfare state. 

BENTHAM’S CONTRIBUTION 

Jeremy Bentham’s contribution to legal theory is considered groundbreaking, marking a significant shift from the natural law doctrines of his predecessors like Blackstone to the rigorous positivism of his own making. Bentham’s approach laid the foundation for legal theory as a science, distinct from mere conjecture or philosophical speculation. His emphasis on empirical investigation and systematic analysis set new directions for lawmaking and legal research, sparking ongoing debates that continue to influence legal thought today. 

Bentham’s philosophy was centred on the principle that human actions are governed by the pursuit of pleasure and avoidance of pain. According to him, the moral worth of an action should be measured by the amount of pleasure or pain it produces. His utilitarian framework posited that the government’s role is to maximise the happiness of society by increasing pleasure and reducing pain, guided by the principle of the greatest happiness of the greatest number. He believed that a happy and contented populace would lead to overall societal prosperity.

Economically, Bentham supported individualism and private property rights as essential for societal wealth. He argued that the state’s laws should not directly provide for citizens’ subsistence but should create incentives through rewards and punishments to encourage individuals to pursue economic activities. This perspective underscored his belief in fostering conditions that motivate individuals to generate wealth and prosperity independently. 

Bentham’s philosophy of law spawned two distinct schools of thought: one focused on the analytical analysis of positive law, and the other concerned with the moral ends and purposes that law should serve. While some critics saw Bentham’s work as neglecting the social goals of law, his analytical approach to discerning effective laws from ineffective ones significantly influenced later jurists like Austin, who is often credited as the father of analytical jurisprudence. Nonetheless, it was Bentham who first adopted and refined the analytical method, earning him the rightful recognition as the progenitor of this influential approach in legal theory. 

CRITICISM AGAINST BENTHAM 

Critics have pointed out several weaknesses in Jeremy Bentham’s legal theory. One significant criticism, highlighted by scholars like Friedmann, is Bentham’s abstract and doctrinaire rationalism, which oversimplifies human nature. Bentham’s approach fails to account for the complexities of human behaviour, such as the blend of materialism and idealism, egoism and altruism. His emphasis on legislative control and disregard for individual discretion in applying laws is seen as overly reliant on the power of lawmakers, neglecting the need for flexibility in legal interpretation. 

Another critique is Bentham’s failure to adequately balance individual interests with those of the community. While advocating for freedom of enterprise and individual liberty, Bentham’s theory suggests that unrestricted pursuit of individual interests automatically benefits society as a whole. However, this view has been challenged, as later legislative actions intended to promote societal welfare sometimes restricted individual freedoms instead. This paradox led some, like Dicey, to argue that Bentham’s advocacy of individualism inadvertently contributed to the rise of state intervention in economic matters, contradicting his original intentions. 

Despite these criticisms, Bentham’s contributions were transformative. His advocacy for legislative lawmaking as a primary method of legal reform significantly shaped modern legal systems worldwide. Bentham’s definitions of law and his analytical approach to legal concepts inspired generations of jurists who built upon his ideas, laying the groundwork for new schools of legal thought and initiating a wave of

legal reforms in England and beyond. His enduring influence underscores the lasting impact of his ideas on the evolution of jurisprudence. 

JOHN AUSTIN 

Born in 1790 John Austin served as an army officer for five years until 1812, when he was called to the bar by the Inner temple in 1818. But ill health and inability to work efficiently and promptly prevented him from succeeding at the bar. He was elevated to the chair of jurisprudence in the University of London in 1826. Thereafter he went to Germany to study Roman law in Heidelberg and Born universities. He was much inspired by the scientific treatment of Roman law and drew inspiration to introduce the same method to the legal exposition of law in England. He, however, avoided metaphysical approach to law which was a peculiar character of law in Germany. His lectures delivered in London University were published under the title of “The province of Jurisprudence determined”. In his lectures he deals with the nature of law and its proper bonds. He wrote another book “A Plea for the Constitution”, it was rather an answer to an essay by Gray “on Parliamentary Government”. But his main contribution to jurisprudence is his first book and on it rests his personality. 

J.S. Mill, who heard his lectures, writes that his lectures left “an indelible impression on those who heard them. 

The method which Austin applied is called analytical method and he confined his field of study only to the positive law. Therefore the school founded by him is called by various names- Analytical; positivism, analytical positivism. Some have objected to all the three terms. They say 

that the word ‘positivism’ was started by Augste Comte to indicate a particular method of study. Though this positivism, later on, prepared the way for the 19th century, legal though, it does not convey exactly the same sense at both the places. Therefore, the word positivism alone will not give a complete idea of Austin’s school. In the same way ‘analysis’ also did not remain confined only to the school, therefore, it alone cannot give a separate identity to the school. Analytical Positivism too may create confusion. The Vienna School in its ‘pure theory of law’ also applies analytical positives although in many respects they vitally differ from Austin’s school. To avoid confusion and to give clarity which is the aim of classification, Professor Allen thinks it proper to call the Austin’s school as ‘imperative school’. This name he gave on the basis of Austin’s conception of law ‘law is command’. 

AUSTIN’S CONCEPTION OF LAW

John Austin’s conception of law is fundamentally characterised by his substitution of the command of the sovereign, or the state, for any ideal of justice in defining what constitutes law. He famously defined law as a rule laid down by a sovereign for the guidance of intelligent beings under its authority. Austin’s approach emerged during a period in England when legislative reforms were urgently needed, and parliament was seen as the authoritative body capable of addressing these needs. His theory strictly divorces law from notions of justice or morality, emphasising instead the authoritative power of those in command. This perspective aligned Austin with earlier theorists like Hobbes, but Austin uniquely developed this idea within the framework of a modern legal system, laying foundational principles that shaped subsequent legal theories and practices. 

AUSTIN’S CLASSIFICATION OF LAW 

Austin’s classification of law falls under two heads, namely, laws set by God, and Laws set by men to men (human laws). 

LAWS SET BY GOD: This category of laws is of no real juristic significance in Austin’s system, compared, for example, with the scholastic teachings which establish an organic relation between divine and human law. 

HUMAN LAWS: Human laws may be divided into two classes 

I. Positive law (laws properly so called):- These are the laws set by political superior as such or by men not acting as political superior but acting in pursuance of legal rights conferred by political superiors. Only these laws are the proper subject-matter of jurisprudence. 

II. Other laws: These laws which are not set by political superior or by men in pursuance of a legal right. In this category are multiple types of rules such as, rules of clubs, law of fashion, laws of natural science, and the rules of international law. Austin names all these ‘positive morality’. 

Contrary to the above, laws properly so called are a species of commands. But being a command, every law properly so-called flows from a determinate source. Whenever a command is expressed or intimated, one party signifies a wish that another shall do or forbear; and the later is obnoxious to an evil which the former intends to inflict in case the wish be disregarded. Every sanction properly so called is an eventual evil annexed to a command. Every duty properly so called supposes a command by which it is created….and duty properly so called is obnoxious to evils of the kind. 

The laws properly so-called, with laws improperly so called, may be aptly divided into the following four kinds-

● The divine laws, or the laws of God; that is to say, the laws which are set by God to his human creatures. 

● Positive laws, or the laws which are simply and strictly so called, and which form the appropriate matter of general and particular jurisprudence. ● Positive morality, rules of positive morality or positive moral rules. ● Laws metaphorical or figurative, or merely metaphorical or figurative. 

The science of jurisprudence, according to Austin, is concerned with positive laws or with laws as considered without regard to their goodness or badness. All positive law is deduced from a clearly determinable law-giver as sovereign. In other words, every positive law, or every law simply and strictly so-called, is set by a sovereign or a sovereign body of persons to a member or members of the independent political society wherein that person or body of persons is sovereign or supreme. 

LAW EMANATES FROM SOVEREIGN 

John Austin’s most significant contribution to legal theory, as highlighted by Friedmann, was his replacement of the idea of justice with the command of the sovereign in defining law. Often hailed as the “Father of Jurisprudence,” Austin revolutionised legal thought by framing jurisprudence as a scientific study. His definition of sovereignty was pivotal: he described a sovereign as a determinate human superior who receives habitual obedience from the majority of a society, without being subject to any similar superior themselves. This concept applied whether the sovereign was an individual or a collective body. In Austin’s view, every society with law inherently involves this relationship between subjects obeying and a sovereign issuing commands. 

Austin’s conception of sovereignty emphasised the role of obedience, which he distinguished from mere compliance with authority-backed orders. He argued that obedience to the sovereign must include deference to authority, not just adherence to commands under threat of punishment. However, Austin’s theory faced challenges in accounting for the continuity observed in legal systems when legislative changes occurred. For instance, he struggled to explain how legal systems smoothly transition from one legislator to another without disruption, such as when Emperor Claudius of Rome altered incest laws to suit his personal interests. This example highlighted the complexity of legal continuity and the acceptance of new legislative authority by society.

Moreover, Austin’s assertion that the English sovereign is simply the entity with the final say in a matter was not entirely accurate, especially in federal systems where legislatures are bound by constitutional constraints. In such cases, courts often have the authority to determine the constitutionality of statutes, illustrating that sovereignty is not absolute but constrained by legal frameworks. Despite these critiques, Austin’s pioneering work laid the groundwork for understanding sovereignty and its implications for legal systems worldwide. 

LAW AS A COMMAND 

According to John Austin, a command is expressed when someone communicates a wish for another person to perform or refrain from an action, coupled with a threat of punishment if the wish is not obeyed. This distinguishes a command from mere expressions of desire by the potential imposition of harm for non-compliance. In legal terms, Austin defines law as a command that obligates individuals to specific courses of conduct. The essence of a legal command, as Austin describes it, is that disobedience may result in some form of punishment or evil. 

Austin emphasizes that not every command constitutes law. While a specific command may direct a particular action or situation, true law pertains to classes of actions or conduct. For instance, a parliamentary statute instructing on a specific shipment of corn would not qualify as law under Austin’s definition, as it addresses a singular instance rather than prescribing general conduct applicable to all similar situations. The hallmark of law, therefore, lies in its generality, reflecting the impracticality and undesirability of issuing individual commands for every specific circumstance. 

Moreover, Austin contends that if law is viewed as a command or order, it necessarily implies directives given to judges as well. In this context, laws would include rules that prohibit judges from exceeding their jurisdiction or presiding over cases in which they have a personal financial interest. Such rules not only impose legal duties but also define and limit judicial powers, ensuring the integrity and impartiality of the legal system. 

SANCTION 

Austin said, “Sanction operates upon the desires and that men are obliged to do or forbear through the desires. For, he is necessarily averse from every evil whatsoever.

That every sanction operates upon the will of the obliged is not true. If the duty is positive, and if he fulfils the duty out of regard to the sanction, it may be said with propriety that the sanction operates upon his will. For his desire of avoiding the evil which impedes from the law, makes him do and therefore, will the act which is the object of the command and duty. But if the duty is negative and if he fulfils the duty out of regard to the sanction, it can scarcely be said with propriety that the sanction operates upon his will. His desire of avoiding the evil which impedes from the law makes him forbear from the act which the law prohibits. But though he intends the forbearance, he does not will the act forborne, or he remains in a state of inaction which equally excludes it. In the former case he does not want the forbearance. In the later case he wills nothing.” 

Only General Commands are law: 

However, all the commands are not law, it is only the general commands, which obliges to a course of conduct, is law. 

Exceptions: 

The general commands are the proper subject of study of jurisprudence. But according to Austin, there are three kinds of laws which though not commands, are still within the province of jurisprudence. They are.- 

● Declaratory or Explanatory Laws: – Austin does not regard them as commands, because they are passed only to explain laws already in force. ● Laws to repeal laws: – These too are not commands but are rather the revocation of a command. 

● Laws of imperfect obligation: – These laws have no sanction attached to them. 

CRITICISM AGAINST AUSTIN’S THEORY 

Austin’s theory of law, though influential, has faced significant criticism from various jurists. Among the critics, Bryce’s condemnation stands out, suggesting that Austin’s contributions are so scant and erroneous that his works should no longer be recommended for students. While this view is extreme, several substantial criticisms have been leveled against Austin’s theory: 

Firstly, Austin’s definition of law as the command of a sovereign neglects the role of customs in regulating societal conduct throughout history. In early times and even after the establishment of states, customs have often governed behaviour, yet Austin’s theory excludes them from the study of jurisprudence.

Secondly, Austin’s narrow definition fails to encompass laws that confer privileges without imposing obligations. For instance, statutes like the Wills Act, which prescribe formalities for creating legally valid wills, do not fit Austin’s framework of law as commands backed by sanctions. 

Thirdly, Austin’s theory does not accommodate judge-made law adequately. While Austinians argue that judges merely interpret and apply sovereign commands, in practice, judges often create legal principles through their decisions—a process Austin’s definition overlooks. 

Moreover, Austin’s exclusion of constitutional conventions and international law from his definition of law has been criticised. These conventions, while not enforceable in courts, significantly influence governance and international relations, yet they fall outside Austin’s rigid positivist framework. 

Additionally, Austin’s extension of positive law to include rules created by private individuals under legal rights is seen as overly broad and vague, lacking the clarity and enforceability characteristic of statutory laws. 

Critics also argue against Austin’s emphasis on sanctions as the sole means of inducing obedience to the law. They point out that obedience can be motivated by factors such as indolence, deference, sympathy, fear, and reasoned belief in the legitimacy of the law, not solely by the threat of sanctions. 

Lastly, modern critics, like Oliver Crone, contend that Austin’s theory overemphasises the command aspect of law. In contemporary democracies, where laws often reflect the general will of the people, the coercive nature of commands has diminished in importance compared to laws derived from democratic consensus. 

In conclusion, while Austin’s theory laid a foundational framework for legal positivism, its limitations in accounting for customs, judge-made law, constitutional conventions, and the broader motivations for legal compliance have prompted substantial critique and refinement by subsequent legal theorists. 

SALIENT POINTS OF AUSTIN’S THEORY 

Austin’s theory prominently brings out the following four points; 

● That every law is a species of command; 

● That all positive laws are command of the sovereign either directly or indirectly; 

● That every law prescribes a course of conduct; and 

● That every law has for its sanction the physical force of the state.

H. L. HART 

Professor Hart is regarded as the leading contemporary representative of British positivism. His identical book “the concept of law” was published in 1961 and that shows that he is a linguist, philosopher, barrister and a jurist. 

Professor Hart has criticised the Austinian conception of law by linking it with his own original concept of law viewed from the positivists standpoint. He has rejected any system of law based simply on coercive orders on the ground that this view is patterned on criminal law when to a large extent the modern legal system confers both public and private legal powers, for instance, in the case of the law relating to wills, contracts, marriage etc. According to him many laws do not have sanctions attached to them for instance customary laws, enabling laws and laws imposing duties on public authorities. 

Hart instead pleads for a dual system consisting of two types of rules, viz., primary and secondary rules. 

The primary rules which impose duty upon individuals are binding because of the popular acceptance such as rule of kinship, family sentiments etc. These being unofficial rules, they suffer from three major defects namely- 

● Uncertainty 

● Static character 

● Insufficiency 

Primary rules lay down standards of behaviour and are rules of obligation, that is, rules that impose duties. 

The secondary rules which are power conferring enable the legislators to modify their policies according to the needs of the society. In fact they seek to remedy the defects of primary rules, primary rules are ancillary to and concern the primary rules in various ways; for instance; they specify the ways in which primary rules may be ascertained, introduced, eliminated or varied and the mode in which their violation may be conclusively determined. 

Hart takes the view that a society which is so legally undeveloped as to have no secondary rules but only primary rules of obligation, would not really possess a legal system at all but a mere ‘set’ of rules. For Hart, therefore it is the union of primary rules and secondary rules which constitute the core of a legal system. 

For a legal system to exist there must be general obedience by the citizens to possess ‘an internal point of view’. In such a case, according to Hart, the importance of the

internal point of view relates not to a body of citizens but to the officials of the system. These officials must not merely ‘obey’ the secondary rules but must take on ‘inner view’ of these rules, and this is a necessary condition for the existence of a legal system. Official compliance with the secondary rules must therefore, involve, both a conscious acceptance of these rules as standards of official behaviour, and a conscious desire to comply with these standards. 

Hart refers to the internal aspects or “inner point of view” that human beings take towards the rules of a legal system. According to him, law depends not only on the external social pressure 

which are brought to bear on human beings to prevent them from deviating from the rules but also on the inner point of view that human beings take towards a rule imposing an obligation. 

RULE OF RECOGNITION 

Professor Hart’s theory of law revolves around the union of primary and secondary rules, where primary rules impose duties, and secondary rules govern the creation, identification, modification, and application of these duties. Central to this framework is the “rule of recognition,” a crucial secondary rule used to identify which primary rules are valid laws within a legal system. This rule relies solely on formal criteria, excluding considerations of morality. According to Hart, only through the combination of primary rules (duties) and secondary rules (powers, including the rule of recognition) can a self-sustaining legal system exist. 

However, Dias critiques Hart’s view by drawing parallels between legal systems and clubs, both of which prescribe behaviours and possess mechanisms for creating and identifying rules. Dias argues that, akin to clubs, legal systems require means of identifying their rules as authoritative. This identification often involves courts and other social mechanisms. Dias also contends that the rule of recognition, while critical for identifying laws, does not neatly fit into the category of powers as it involves the acceptance of powers rather than their exercise. 

Moreover, Dias and other critics question Hart’s exclusion of morality from the rule of recognition. They argue that social and moral considerations play vital roles in accepting and continuing legal systems, influencing the criteria used to validate laws. This critique suggests that Hart’s framework might overlook the inherent moral dimensions that shape legal systems, potentially limiting its ability to address abuses of power or moral ambiguities within laws. 

In summary, while Hart’s theory provides a structured framework for understanding legal systems through primary and secondary rules, it faces criticism for potentially oversimplifying the complex interplay between law, morality, and social acceptance.

Critics, like Dias and Dworkin, argue for a more inclusive approach that considers not just formal rules but also legal doctrines and moral principles essential to the functioning and legitimacy of legal orders. 

POINTS OF DIFFERENCE BETWEEN ANALYTICAL SCHOOL AND HISTORICAL SCHOOL OF JURISPRUDENCE: 

Analytical School Historical School 1. Law is the creation of state. 1. Law is found and not made. Law 2. Without a sovereign, there can be is self- existent. no law. 2. Law is an antecedent to the state 3. The hall-mark of law is and exists even before a state enforcement by the sovereign. organisation comes into being. 4. The typical law is statute. 3. Law is independent of political 5. Judges should confine authority and enforcement. It is themselves to a purely syllogistic enforced by the sovereign method. because it is already law; it does 6. Law rests upon the force of not become law because of politically organised society. enforcement by the sovereign. 7. Emphasis is on empirical a priori 4. The typical law is custom. method. 5. In constructing a statute judges 8. Law is the command of the should consider the history of the sovereign. legislation in question. 6. Law rests on the social pressure behind the rules of conduct which it enjoins. 7. Emphasis is no comparative method. 8. Law is the rule whereby the invisible border

SIR HENRY MAINE (1822-1888)

Maine made a comparative study of the legal institutions 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 made 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 a law member in the council of the Governor General of India between 1861 and 1869. This provided him an opportunity for the study of the 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 the 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, concluded that the development of law and other social institutions has been almost identical across ancient societies, including Hindu, Roman, Anglo-Saxon, Hebrew, and Germanic communities. Most of these societies were founded on a patriarchal pattern, with the eldest male parent, the Pater familias, dominating the family. Some communities, however, followed a matriarchal pattern where the eldest female managed family affairs. Maine noted that the Pater familias constituted the lowest unit of primitive communities, with families forming family groups, gens, tribes, and eventually communities. Individual members had no existence beyond their status within these structures. 

Maine famously stated that “the movement of progressive societies has hitherto been a movement from Status to Contract.” In a status-based society, individuals are bound by their social conditions without reference to their will, with the group being the primary social unit. As civilizations progress, this status system transitions to a contract-based system, characterised by individual freedom and voluntary actions determining rights, duties, and liabilities. According to Maine, a progressive civilization is marked by the emergence of independent, self-determining individuals as the primary social units. 

Maine’s “status to contract” doctrine is a significant contribution to jurisprudence, alongside his theories of law and lawmaking. He proposed that early laws were

personal commands of patriarchal rulers, perceived as divinely inspired. This was followed by a period of customary law managed by a privileged aristocracy. The third stage involved codification of these customs due to social conflicts. In the fourth stage, strict archaic laws were codified using fiction, equity, and legislation to align with a progressing society. Scientific jurisprudence then systematized these forms of law. Maine acknowledged that not all societies progress through these stages uniformly, but his work indicates general trends in legal evolution. 

Maine’s comparative analysis was later supplemented by Sir Paul Vinogradoff’s historical studies in the early twentieth century. English historical research produced significant works such as Pollock and Maitland’s “History of English Law before the time of Edward I” and Holdsworth’s “History of English Law.” Despite these contributions, a comprehensive history of English law that closely correlates legal developments with England’s political, social, and cultural history is still lacking. 

DEVELOPMENT OF LAW 

LAW MADE BY THE RULER UNDER DIVINE INSPIRATION OR DIVINE LAW OR DOOMS OR THEMESTERS: In the beginning, law originated from themes which meant the Goddess of justice. It was generally believed that while pronouncing justice the king was acting under the divine inspiration of the Goddess of justice to be executed by the king as custodian of justice under divine inspiration. 

Themesters are the awards pronounced by judges as divinely dictated to him. Themesters are not laws but judgments or dooms. The king happened to be the administrator of judgments -of course he was not the maker of law as the themester were divinely inspired by the Goddess of justice. 

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. 

KNOWLEDGE OF LAW IN THE HANDS OF PRIEST: In the next 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 memorised the rules of customary law because the art of writing had not developed till then.

ERA OF CODES (CODIFICATION): 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 the 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 fiction 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: 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 fiction. 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: 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.