Savigny versus Maine

Think of language. A poet will tell you that Hindi or German is the living soul of a people: nobody legislated its grammar, it simply grew, and a foreign committee could never impose a new one. A comparative linguist lays Sanskrit, Greek and Latin side by side and finds regular laws of change that many languages share. Savigny is the poet of law: every nation's law is its own, like its speech. Maine is the comparative linguist: he sets Roman, Hindu, Irish and English law side by side and finds a common direction of travel. The historical school as a whole is in Note 13; this note concentrates on the contrast.

Figure: Savigny's Volksgeist, with language, custom, belief and law radiating from the spirit of the people, set against Maine's staircase from status to contract in progressive societies

1. Savigny: the Volksgeist and the Case against a Code

Friedrich Carl von Savigny (1779 to 1861) wrote in the aftermath of the Napoleonic wars. In 1814 the Heidelberg jurist Thibaut proposed a single civil code for the German states, partly to give the divided nation a common law. Savigny answered in the same year with On the Vocation of Our Age for Legislation and Jurisprudence. His argument was that law is not the arbitrary product of a lawgiver. Like language, manners and the constitution of a people, it is formed first by custom and popular belief and later refined by jurists, always by inner, silently working forces. A code written by a generation that did not yet understand its own legal history would freeze the law in an immature state. The legislator's proper role is modest: to declare and tidy what already lives in the popular consciousness.

Savigny saw two elements in developed law. The political element is the law's connection with the general life of the people. The technical element is the work of the jurists, who in an advanced society become the representatives of the people's legal consciousness and give it scientific form. This explains why he gave lawyers, rather than legislators, the leading role in legal development.

Two further points are often muddled. First, the Volksgeist is Savigny's theory of where law comes from, but his method was anything but mystical. He was the leading Roman law scholar of his age, and his reputation rests on painstaking study of the sources: his early treatise on possession (1803; see Note 30), the History of Roman Law in the Middle Ages, and the multi-volume System of Modern Roman Law, published from 1840. Second, the word Volksgeist itself was developed and popularised by his pupil Puchta, who traced the stages by which popular conviction becomes custom and then juristic law.

2. Maine: from Status to Contract

Henry Sumner Maine (1822 to 1888) carried the historical method into England, but changed it. Instead of intuiting the spirit of one nation, he compared the early law of many peoples. In Ancient Law (1861), chapter 5, he observed that in early society a person's rights and duties were fixed by status: his place in the family, above all under the power of the father (the Roman patria potestas), determined by birth and not by choice. Over time, in progressive societies, the family dissolved as the unit of law and the individual took its place, free to create obligations by agreement.

Maine gave his own examples. The status of the slave had disappeared, superseded by the contractual relation of the servant to his master. The status of the female under tutelage had ceased to exist, so far as the tutelage was of persons other than her husband: from her coming of age to her marriage, all her relations were of contract. The status of the son under power had no true place in the law of modern European societies. Maine also restricted the word status to personal conditions flowing from the ancient powers and privileges of the family, not to conditions produced by agreement. The word hitherto in his formula matters as well: he described the past course of progressive societies, not a law of nature that must continue for ever.

Maine distinguished progressive from stationary societies. In his view the stationary condition was the rule and progress the exception: most of mankind had remained stationary, their law stopping at the stage of a code. The progressive societies were those in which law continued to develop after the code. Maine did not say that stationary societies could never change, and modern writers criticise his classification as coloured by Victorian and European assumptions.

3. Maine's Stages and Agencies of Legal Change

How does a progressive society keep its law in step with social change once a code exists? Maine named three agencies and insisted on their historical order: legal fictions, then equity, then legislation. A fiction hides a change of law behind a pretence that the law is unchanged. Roman adoption let a stranger be treated as a son; English case law, Maine said, rests on the fiction that judges only declare existing law. Equity openly supplements the law by appeal to principles claimed to be of higher authority, as with the Roman praetor's edict and the English Court of Chancery. Legislation is the enactment of a legislature, which binds because of the authority of its maker, not because of the principle it declares. Legislation is the most direct and the last of the three, and Maine had no hostility to it.

Maine's patriarchal theory held that the earliest society was an aggregation of families under the despotic power of the eldest male ascendant, expanding into the house, the tribe and the commonwealth, with kinship the basis of political union before territory. Later anthropologists, pointing to matrilineal societies, showed that the patriarchal family was not universal. In India, Maine served as Law Member of the Governor-General's Council from 1862 to 1869, supported codification for India, and later published Village Communities in the East and West (1871), comparing the Indian village with early European communities. A man who spent seven years legislating for India plainly did not distrust legislation.

4. The Two Compared

What they share is the core of the historical school: law is found in a society's past rather than made by a present will; history is the key to understanding any legal institution; and both reject the timeless reason of natural law and the unhistorical analysis of Austin (Note 56). Savigny gave the school its philosophy; Maine gave it a comparative method and its most famous result.

5. Criticism and Evaluation

6. Indian Illustrations

No Indian court has adopted either theory. The cases below are illustrations that show the ideas at work.

7. Frequently Asked Questions

Q. What is the main difference between Savigny and Maine?
A. Both belong to the historical school. Savigny explains the origin of law in the consciousness of one people and warns against premature codes. Maine compares many legal systems and traces a general direction of development, from status to contract, driven by fictions, equity and legislation.

Q. Did Maine say that stationary societies never progress?
A. No. He said that most of mankind had remained stationary and that progress was the exception. His formula about progressive societies is qualified by the word 'hitherto'.

Q. Was Savigny's own method mystical?
A. No. The Volksgeist is his theory of the origin of law. His method was careful historical scholarship on the Roman sources, seen in his System of Modern Roman Law and his work on possession.

Q. Is Maine's thesis still valid?
A. It describes the liberal nineteenth century well. Modern labour, tenancy and consumer law, and courts' control of standard-form contracts as in Brojo Nath Ganguly (1986), show a partial return to status fixed by law.

See also: Note 13 (historical school), Note 25 (custom), Note 23 (legislation), Note 56 (analytical versus historical), Note 57 (historical versus sociological), Note 68 (Savigny versus Jhering).