Law and society are deeply interconnected, evolving alongside cultural, political, and economic structures. Theories by Henry Maine, Friedrich Carl von Savigny, and Max Gluckman provide diverse perspectives on legal evolution, customary law, and its role in maintaining social order. Maine's historical approach traces law's transition from status to contract, Savigny emphasizes the organic development of law within a nation's culture, and Gluckman explores law as a social process in tribal societies. Together, their insights shape the understanding of legal systems across different societies.

Objectives

• To analyze Maine's theory of legal evolution and its impact on modern legal systems.
• To explore Savigny's Historical School of Law and the role of custom in shaping legal traditions.
• To examine Gluckman's anthropological approach to law and its function in conflict resolution.
• To compare these perspectives in understanding the relationship between law and society.
   

Friedrich Carl Von Savigny

Savigny was a leading 19th-century German jurist and founder of the Historical School of Law through his concept of Volksgeist (Spirit of the People). Born on February 21, 1779, in Frankfurt, he studied Roman law at Marburg and Göttingen. He became a professor at the University of Berlin in 1810 and served as Prussian Minister of Justice in 1848.

Major Works:

• Law of Possession (1803)
• The History of Roman Law in the Middle Ages (1818-31)
• System of Modern Roman Law (1840-49)
• Contracts (1853)

Jurisprudential Study of the Theory

As mentioned above, Savigny believed that the evolution of law can only be made by taking into account past considerations, and without doing that, it creates more confusion rather than solving it. According to Savigny, the origin of law lies in the Volksgeist. For this purpose, he established the Historical School of Jurisprudence.

Theory of Volksgeist

Volksgeist suggests that law emerges organically from the people's common will, shaped by history and tradition, rather than deliberate legislation. Savigny believed that law evolves alongside society's consciousness and is deeply rooted in culture.

Key Aspects of Volksgeist:

• Law originates in society: It reflects the historical and cultural evolution of a nation.
• Law develops like language: It is an expression of national identity and grows alongside societal changes.
• Law is a continuous process: Customs evolve into laws through general acceptance over time.
• Against codification: Savigny opposed arbitrary legislation, favoring historical evolution instead.
• Jurists refine law over time: Initially, law forms naturally but later develops through legal scholars.

Criticism:

• Volksgeist is not always law: Some legal institutions, like slavery, arose from power dynamics, not societal will.
• Ambiguity: It is unclear whose Volksgeist shapes law.
• Inconsistency: Savigny emphasized national law but also supported adopting Roman legal principles.
• Neglect of other influences: He overlooked legislation, judicial creativity, and external factors shaping law.
• Misuse of theory: The Nazi regime later misapplied Volksgeist to justify oppressive laws.

D. Henry Maine's Perspective on Law and Society

Sir Henry Maine, a 19th-century British jurist and comparative law scholar, significantly influenced legal history and jurisprudence. He founded the English historical school of law, building on Savigny's ideas. He carried forward the thoughts and views of the famous jurist Savigny, who was the 'Father of the Historical School.' In his seminal work Ancient Law (1861), he traced the evolution of legal systems, highlighting the shift from status-based to contract-based societies. Serving on the Council of the Governor-General of India (1861–1869), Maine extensively studied Indian law. He argued that ancient societies, including Hindu, Roman, and Germanic, developed legal systems similarly. He also introduced the concept of "status" in customary law, where social hierarchy dictated legal rights and obligations.

Development of Law in Four Stages:

• Divine Guidance: In early societies, rulers were believed to be guided by divine forces. Laws were derived from religious beliefs, and kings merely executed divine will rather than creating laws. Ancient Greek Themistes is an example, where the judgment of the king was considered equivalent to the judgment of God.
• Customary Law: Over time, the commands of the king transitioned into customary laws. The priestly class took over the role of law preservation, monopolizing legal knowledge and ensuring the customs of specific races or castes remained intact. Law became more community-driven rather than solely reliant on royal decrees.
• Minority Control: A small elite class emerged, administering and influencing customs while restricting broader participation in law-making. Due to the lack of legislative capacity among rulers, the legal system was largely controlled by this minority class, which eventually diminished the ruler's direct power.
• Codification: The final stage saw laws being formally codified and systematically declared, creating structured legal systems accessible to all, reducing reliance on religious or customary interpretations.

Types of Societies:

• Static Societies: These societies codified laws but did not evolve beyond them, making their legal systems rigid. They were unable to adapt to changing socio-political and economic conditions, leading to stagnation.
• Progressive Societies: These societies continued legal development beyond codification through:
  • Legal Fiction: Modified laws subtly to meet societal demands while maintaining formal consistency. For instance, a law could be reinterpreted significantly without being rewritten, allowing legal systems to evolve without direct changes.
  • Legislation: The most effective method of law-making, legislation involved the formal enactment of laws by an external body, independent of traditional customs or historical influences.
  • Equity: Introduced as a parallel legal framework to eliminate unfairness and rigidity. Equity aimed at ensuring justice by allowing for more flexible interpretation and application of legal principles.

 

Henry Maine on Customary Law

• Maine emphasized that in primitive societies, law was rooted in customs, passed down orally and maintained through traditions.
• Customary law structured social institutions such as family, property rights, and land tenure systems.
• Customary law also determined an individual's societal role, ensuring social cohesion through established practices.
• The authority of customary law derived from its role in shaping community identity and regulating interpersonal relationships.
• Maine noted that in patriarchal societies, customary law placed authority in the hands of fathers, whereas in matriarchal societies, the mother's word was binding.

Maine's Work in India

• Legal Reforms: As a Legal Member of the Governor-General's Council, he restructured India's legal and judicial system.
• Study of Hindu Law: Analyzed property rights, marriage, and inheritance, publishing Lectures on the Early History of Institutions (1865).
• Legal Education: Improved legal training and curricula for Indian professionals.
• Influence on Colonial Law: Advocated for integrating indigenous customs into British legal frameworks.
• Village Communities: Explored communal land ownership and local governance in Village Communities in the East and West (1871).

Criticisms of Henry Maine

• Modern anthropologists criticize Maine's rigid model of legal evolution, arguing that early societies had more flexible laws than he suggested.
• His theory does not account for societies where legal development did not follow his four-stage pattern.
• He assumed that legal progress always moved from status-based societies to contract-based societies, but modern social policies often maintain status-based elements (e.g., affirmative action in the U.S., social welfare programs in Europe).
• He overlooked the impact of socio-economic factors and class struggles on legal evolution.

Transition to Contract

• Maine's core idea was that societies evolved from status-based legal systems, where rights and duties were assigned by social hierarchy, to contract-based systems, where individuals had the autonomy to create legally binding agreements.
• This shift allowed for greater economic and social mobility, reducing the influence of rigid social classes on legal rights.

Max Gluckman on Law and Society

• Max Gluckman was a prominent legal anthropologist known for his contributions to the study of law and society.
• His work focused on how legal systems function within social structures, particularly in colonial and tribal settings.
• He emphasized that law is not merely a set of abstract rules but a dynamic system influenced by social norms, economic conditions, and political power.

Key Contributions of Max Gluckman to Legal Anthropology

• Law as a Social Process: Gluckman argued that legal systems cannot be understood in isolation from society. He studied how disputes are resolved within communities, emphasizing that legal decisions often reinforce social order rather than merely applying rigid rules. His research demonstrated that law adapts to social changes and conflicts, making it a tool for both maintaining and transforming societies.
• Case Studies in African Legal Systems: One of Gluckman's most famous contributions was his study of tribal law in Africa, particularly among the Barotse people of Zambia. His analysis showed that African customary law was not primitive but a sophisticated system that balanced tradition with social change. He highlighted the role of chiefdoms and customary courts in mediating disputes.
• The Role of Conflict in Legal Systems: Gluckman proposed that conflicts and disputes are natural in society and serve as mechanisms for legal evolution. His "Peace in the Feud" theory suggested that even in societies with ongoing disputes, there exist legal mechanisms that prevent complete disorder. He believed that feuds and legal battles ultimately contribute to social stability.
• Legal Pluralism and Colonial Influence: Gluckman studied how colonial legal systems interacted with indigenous legal traditions. He demonstrated that legal pluralism—where multiple legal systems coexist—was common in colonial societies. He argued that colonial courts often modified traditional legal principles to fit the needs of the colonial administration, affecting local justice systems.
• Rituals, Ceremonies, and Law: Gluckman explored the relationship between law and rituals, showing how ceremonies reinforce legal norms. He examined how tribal rituals often served as mechanisms for dispute resolution, restoring harmony after conflicts. His research contributed to a deeper understanding of how non-Western societies maintain legal order.

Relevance of Gluckman's Work to Modern Legal Research

• Alternative Dispute Resolution (ADR): His emphasis on mediation and customary dispute resolution remains relevant in modern ADR mechanisms such as arbitration and mediation.
• Legal Pluralism: His insights are crucial for understanding how different legal systems coexist in post-colonial and multicultural societies.
• Sociology of Law: His work laid the foundation for the study of law as a social institution rather than a purely normative system.

Major Works

• The Judicial Process Among the Barotse of Northern Rhodesia (1955) – A detailed study of customary law in African societies.
• Order and Rebellion in Tribal Africa (1963) – Examines how law maintains order in tribal societies despite conflicts.

Conclusion
Maine, Savigny, and Gluckman provide unique yet complementary perspectives on the interaction between law and society. While Maine focuses on the historical transition of legal systems, Savigny stresses the cultural roots of law, and Gluckman highlights its role in social cohesion. Their contributions emphasize that law is not static but evolves in response to societal changes, shaping governance, justice, and dispute resolution across civilizations. Written By: Om Prakash Tiwari, Legal Scholar At IP University, Delhi