According to Henry Maine, Why Did the Study of Law and Legal Practices Require an āhistorical Methodā?
According to Henry Maine, why did the study of law and legal practices require an āhistorical methodā?
Over years the legal system of the world has evolved. From ancient codes and unwritten traditions, law over time has developed to cater to the needs of different societies in the changing world. However, to understand law and legal practices we need to conceive the development of law over the ages. Henry Maine argues the necessity of the historical method in discerning of the legal practice, as law has not changed from ancient times but only evolved to cater to the changing needs of society.
According to Maine the historical method is an approach to ascertain the development of different communities and their laws collectively. The example of parenthood and how it has developed with the changing society over time best illustrates Maineās idea of the historical method and cumulative development of society and law. āPrimeval paternal authorityā or āPatria Potestasā of the Romans has developed bounteously over the years. The concept illustrates the development in the rights of parents over their children. Fathers in ancient times had complete rights over there children. From being in charge of their life and death, a father could decide whom his children would marry, he could divorce his children, give his wife in marriage to his son, transfer children to other families for adoption and could even sell them. However, with time and development in society there has been a change in the rights parents and especially a father hold. The forceful marriage of children that parents could decide is now in a modern society a conditional veto, selling of children has been disallowed by law and the adoption can no longer withstand without the consent of those adopting the child. Maine argues in favor of the Historical method trying to prove that there might be an end to the spontaneous development of law however