Sir Henry Maine Research Articles

Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833–45

Sir Henry Maine, the eminent Victorian jurist, once remarked, in frustration at being unable to secure his desired reforms of the Indian criminal law, that no one cared about the penal code except theorists and habitual criminals. This has been the recurrent lament of the English criminal lawyer. Repeated initiatives in the field of codification over the last 150 years have enjoyed little popular support or understanding, and as the most recent project stumbles forward into its fourth decade, an air of fatalism surrounds the entire question of the code. There are calls for a new political initiative to revive the project, and there have been more modest appeals for a reexamination of the principles of existing penal legislation, though neither seems likely to provoke much response. Yet, for all of the recent discussion of codes and codification, the question of the significance of codification to the modern law remains something of an enigma.

Reconstructing the English Codification Debate: The Criminal Law Commissioners, 1833–45

Sir Henry Maine, the eminent Victorian jurist, once remarked, in frustration at being unable to secure his desired reforms of the Indian criminal law, that no one cared about the penal code except theorists and habitual criminals. This has been the recurrent lament of the English criminal lawyer. Repeated initiatives in the field of codification over the last 150 years have enjoyed little popular support or understanding, and as the most recent project stumbles forward into its fourth decade, an air of fatalism surrounds the entire question of the code. There are calls for a new political initiative to revive the project, and there have been more modest appeals for a reexamination of the principles of existing penal legislation, though neither seems likely to provoke much response. Yet, for all of the recent discussion of codes and codification, the question of the significance of codification to the modern law remains something of an enigma.

Dilemmas in Working in Partnership with the Parents and Relatives of Children Involved in Child Protection Planning

This paper considers the currency of the word “partnership” in child protection as it relates to the parents and other relatives of children subject to child protection investigations orprocedures. Parents, it is suggested, are often effectively ignored, or worse, deliberately excluded, once child protection concerns are being addressed. To ignore, however, the families that children were either born to or live with when efforts are made to protect them is, it is suggested, to de‐contextualise their lives. Ultimately indeed it may be to place them at greater peril than exists as the consequences of any abuse. The basis for professional power in child protection is analysed along the dimensions of legal mandate and statutory role, gatekeeping functions and the organisational and professional context in which it operates. Seligman's theory of learned helplessness is employed as a conceptual framework in which to understand the processes by which birth parents and other relatives are likely to become increasingly ineffectual, once child protection procedures are invoked, in participating in a partnership with professionals to promote the best interests of their children. The paper concludes in examining what Sir Henry Maine first described as the move from ‘status’ to ‘contract’ in modern liberal democracies, a process whereby the regulatory functions of traditional kinship systems increasingly have been eroded by the State. It is suggested that only those models of child protection which can effectively begin to reverse this trend are likely to lead to effective partnerships between parents and birth relatives of children who are seen to be at risk, and the various professionals concerned to protect them. The paper concludes in suggesting that good intentions on the part of professionals are necessary but insufficient requirements for partnership; partnership can only effectively be achieved, it is suggested, through a fundamental reform of the legal framework.‐

Alan Diamond, Ed. The victorian achievement of Sir Henry Maine: A centennial reappraisal. Cambridge: Cambridge University Press, 1991. 454 pp. $84.95 (cloth) (Reviewed by Maryann E. Brink)

Journal of the History of the Behavioral SciencesVolume 31, Issue 3 p. 285-286 Book Review Alan Diamond, Ed. The victorian achievement of Sir Henry Maine: A centennial reappraisal. Cambridge: Cambridge University Press, 1991. 454 pp. $84.95 (cloth) (Reviewed by Maryann E. Brink) First published: July 1995 https://doi.org/10.1002/1520-6696(199507)31:3<285::AID-JHBS2300310318>3.0.CO;2-JAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat No abstract is available for this article. Volume31, Issue3July 1995Pages 285-286 RelatedInformation

The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal.Alan Diamond

<i>The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal.</i>Alan Diamond

The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal

Notes on contributors Foreword Sir John Lyons Introduction Alan Diamond 1. The Victorian values of Sir Henry Maine George Feaver Part I. Maine and the Idea of Progress: 2. Henry Maine and mid-Victorian ideas of progress John W. Burrow 3. Maine, progress and theory Raymond Cocks 4. Maine and the theory of progress Krishan Kumar 5. Democracy and excitement: Maine's political pessimism Stefan Collini Part II. Maine and the Social Sciences: 6. The rise and fall of Maine's patriarchal society Adam Kuper 7. Some contributions of Maine to history and anthropology Alan D. J. Macfarlane 8. Henry Sumner Maine in the tradition of the analysis of society Edward Shils 9. Maine as an ancestor of the social sciences J. D. Y. Peel 10. Ancient Law and modern fieldwork Ray Abrahams Part III. Maine on Law, Legal Change and Legal Education: 11. Maine and legal education Peter G. Stein 12. Maine and legal education: a comment William Twining 13. A wake (or awakening?) for historical jurisprudence Calvin Woodard 14. Further thoughts on Maine's historical jurisprudence David E. C. Yale 15. Fictions, equity and legislation: Maine's three agencies of legal change Alan Diamond 16. Law and language: a metaphor in Maine, a model for his successors? Bernard S. Jackson 17. Linguistics and law: the legacy of Sir Henry Maine John Lyons Part IV. Maine and India: 18. The influence of Sir Henry Maine on agrarian policy in India Clive Dewey 19. India and Henry Maine Gordon Johnson 20. Maine and change in nineteenth-century India C. A. Bayly Appendix: the conference programme Bibliography Index.

The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal

The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal

Review: The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal

Review: The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal

Introduction: The Impact of Political Change upon Law, Courts, and Judicial Elites

The impact of significant political change and conflict upon law, and legal and judicial elites is central theme of this issue of International Political Science Review. For decades, little attention was paid to attributes and political and social roles of lawyers and judges froma comparative cross-national perspective. Eighteenth, nineteenthand early twentieth-century assessments of determinants of characteristics of legal systems generally emphasized factors other than legal and judicial elite characteristics and roles. Thus Montesquieu identified climate and geographical location [1748] (1977) as did Randall (1918). Sir Henry Maine emphasized early legal codification [1861] (1931). James Bryce focused upon racial characteristics (1902 and 1918), while Achille Loria underscored economic factors as decisive (1918). In contrast, after assessing sixteen legal systems (ancient as well as contemporary) which he deemed most significant, John Henry Wigmore found ample empirical evidence to eliminate race as a determinant. Instead, he suggested that the rise and perpetuation of a legal system is dependent on development and survival of a highly trained professional class (1928: 1127). Early in nineteenth century, Alexis de Tocqueville had introduced several basic assumptions about collective attitudes and societal roles of lawyers and judges. In his partially completed work on The Ancient Regime, he pointed out that German lawyers had recommended that Roman law should replace or modify German law in order to serve interests of monarchy. He further noted that because it degraded political society,

The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal, edited by Alan Diamond

<i>The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal</i>, edited by Alan Diamond

Sir Henry Maine: A Study in Victorian Jurisprudence.

Sir Henry Maine: A Study in Victorian Jurisprudence.

Rights and Right Conduct, Presumptions and Validity

According to Sir Henry Maine, “a clear and consistent meaning was for the first time given to the expression ‘a right’ by the searching analysis of Bentham and Austin.” There is no question at least that clear thinking respecting the concept of ‘a right’ has been — and still is — closely associated with the work of legal philosophers, in particular, legal philosophers working in the positivistic tradition of Bentham and Austin. In Bentham’s case, clarity and consistency of thought respecting rights are purchased by confining attention to the legal arena. In truth, Bentham writes, “there are no such things as natural rights — no such things as rights anterior to the establishment of government — no such things as natural rights opposed to, in contradistinction to, legal [rights].” In short, all rights are artificial, products of human action. Consequently, that a certain “point of conduct” is a right does not turn on whether that point of conduct passes a moral test. It is neither necessary nor sufficient for the truth of such a claim of right that the conduct in question is right conduct. To think otherwise is to confuse questions of existence with questions of merit. One may have a right, say, to burn the flag of the United States in a peaceful political protest even though, in terms of widely accepted criteria of right conduct, say, of conservative Americans, this is wrong. So it has become a commonplace among contemporary rights theorists that there is a distinction between ‘a right’ (moral or legal) and ‘the right thing to do’ (morally or legally), unless a point were being pressed with respect to natural rights.

Sir henry maine, joseph stalin and the reorganisation of the national health service

(1990). Sir henry maine, joseph stalin and the reorganisation of the national health service. The Journal of Social Welfare Law: Vol. 12, No. 5, pp. 296-309.

Sir Henry Maine: A Study in Victorian Jurisprudence

Acknowledgments Introduction 1. The early thoughts about law 2. Lawyers and Maine's jurisprudence 3. 'Ancient law' 4. After 'ancient law' 5. The decline of a jurist 6. The reception of Maine's jurisprudence 7. Conclusion Index.

Reviews of Books

Reviews of Books Get access Sir Henry Maine: A Study in Victorian Jurisprudence. By R. C. J. COCKS (Cambridge: U.P., 1988; pp. . £25); James Fitzjames Stephen: Portrait of a Victorian Rationalist. By K. J. M. SMITH (Cambridge: U.P., 1988; pp. xii + 338. £30). H. L. A. HART H. L. A. HART University CollegeOxford Search for other works by this author on: Oxford Academic Google Scholar The English Historical Review, Volume CV, Issue CCCCXVI, July 1990, Pages 700–702, https://doi.org/10.1093/ehr/CV.CCCCXVI.700 Published: 01 July 1990

Sir Henry Maine: A Study in Victorian Jurisprudence.

Sir Henry Maine: A Study in Victorian Jurisprudence.

The Warren Court: Rediscovering the Link between Law and Culture

Europeans frequently observe that there has always been an absence of concern with political culture in the Anglo-American intellectual tradition. This is not strictly so. It is true that the triumph of Benthamism in the political and legal thought of nineteenth century England was accomplished by defeating historical and prescriptive modes of thought and elevating abstract universalism to the forefront.' Yet, Burke's own attack on the abstract universalism of the French Revolution2 was itself put forth in the name of culture, history and prescription. In nineteenth century England, attention to the concrete, to the particular-to context, social custom, and the weight of history-was put forth by conservatism against the Party of Reform.3 It was the essence of Sir Henry Maine's attack on Benthamism.4 Maine's turn to legal anthropology was offered for the purpose of developing a Darwinian theory of evolutionary customary law as an alternative to the abstract universalism of Benthamism. In the practical politics of nineteenth century English law reform, social engineering through parliamentary legislation became the chosen path of reform while control of common law modes of thought continued to be the turf of Blackstonian and Burkean conservatism.' On the Continent, attention to political culture was initially rooted in the prescriptive or customary claims of the seventeenth century aristocracy in reaction to the centralizing absolute monar-

Breach of Contract in the Soviet Economy

Previous articleNext article No AccessBreach of Contract in the Soviet EconomyHeidi KrollHeidi Kroll Search for more articles by this author PDFPDF PLUS Add to favoritesDownload CitationTrack CitationsPermissionsReprints Share onFacebookTwitterLinkedInRedditEmail SectionsMoreDetailsFiguresReferencesCited by The Journal of Legal Studies Volume 16, Number 1Jan., 1987 Sponsored by The University of Chicago Law School Article DOIhttps://doi.org/10.1086/467826 Views: 6Total views on this site Citations: 17Citations are reported from Crossref Copyright 1987 The University of ChicagoPDF download Crossref reports the following articles citing this article:Lucie Coufalová, Štěpán Mikula, Libor Žídek Misreporting in financial statements in a centrally planned economy: The case of Czechoslovak state-owned enterprises in late socialism, Accounting History 144 (Aug 2022): 103237322211096.https://doi.org/10.1177/10323732221109652Paul H. Rubin Legal Reform in Eastern Europe, (Jan 2017): 1207–1217.https://doi.org/10.1007/978-1-349-74173-1_229Kathryn Hendley, Peter Murrell, Randi Ryterman Law, Relationships and Private Enforcement: Transactional Strategies of Russian Enterprises, Europe-Asia Studies 52, no.44 (Jul 2010): 627–656.https://doi.org/10.1080/713663079Kathryn Hendley, Peter Murrell, Randi Ryterman Law, Relationships, and Private Enforcement: Transactional Strategies of Russian Enterprises, SSRN Electronic Journal (Jan 1999).https://doi.org/10.2139/ssrn.147088Kathryn Hendley , Post-Soviet Geography and Economics 39, no.77 ( 1998): 379.https://doi.org/10.1080/10889388.1998.10641084David Hughes, Lesley Griffiths, Jean McHale Purchasing in the NHS: administered or market contracts?, (Jan 1997): 55–84.https://doi.org/10.1007/978-1-349-13710-7_4Timothy Frye Caveat Emptor: Institutions, Contracts and Commodity Exchanges in Russia, (Jan 1995): 37–62.https://doi.org/10.1007/978-94-011-0641-2_3Jim Leitzel A note on monopoly and Russian economic reform, Communist Economies and Economic Transformation 6, no.11 (Dec 2007): 45–53.https://doi.org/10.1080/14631379408427779Michael Burawoy, Kathryn Hendley Between Perestroika and privatisation: Divided strategies and political crisis in a Soviet enterprise, Soviet Studies 44, no.33 (Nov 2007): 371–402.https://doi.org/10.1080/09668139208412022Michael Spagat Contract enforcement in sellers' markets, Journal of Comparative Economics 15, no.44 (Dec 1991): 681–697.https://doi.org/10.1016/0147-5967(91)90007-GMichael Alexeev The ‘storming’ pattern of enterprise behavior in a centrally planned economy, Journal of Economic Behavior & Organization 15, no.22 (Mar 1991): 173–185.https://doi.org/10.1016/0167-2681(91)90027-UDavid Hughes, Robert Dingwall Sir henry maine, joseph stalin and the reorganisation of the national health service, The Journal of Social Welfare Law 12, no.55 (Feb 2008): 296–309.https://doi.org/10.1080/09649069008412540Heidi Kroll Reform and Damages for Breach of Contract in the Soviet Economy, Soviet Economy 5, no.33 (May 2013): 276–297.https://doi.org/10.1080/08826994.1989.10641311Heidi Kroll Property rights and the soviet enterprise: Evidence from the law of contract, Journal of Comparative Economics 13, no.11 (Mar 1989): 115–133.https://doi.org/10.1016/0147-5967(89)90054-1 J. Mark Ramseyer Water Law in Imperial Japan: Public Goods, Private Claims, and Legal Convergence, The Journal of Legal Studies 18, no.11 (Oct 2015): 51–77.https://doi.org/10.1086/468140Heidi Kroll The role of contracts in the Soviet economy, Soviet Studies 40, no.33 (Nov 2007): 349–366.https://doi.org/10.1080/09668138808411763 Richard Craswell Precontractual Investigation as an Optimal Precaution Problem, The Journal of Legal Studies 17, no.22 (Oct 2015): 401–436.https://doi.org/10.1086/468135

Status: Problems of Definition and Use

Sir Henry Maine's Ancient Law, first published in 1861, postulated legal development in terms of an evolution from status to contract. Since that time both lawyers and anthropologists have made frequent use of the notion of status in their characterisation of law or society. Although status is a concept well known in social theory whose exponents, independently of Maine, have worked out its content and application, much that has been written about status in a legal or anthropological context owes its inspiration to him. Maine's status to contract thesis has proved of interest both to lawyers studying the history of the common law or modern developments in the law of contract and to anthropologists studying social and legal phenomena in simple or tribal societies.

The Dimension of History in Bentham's Theory of Law

BENTHAM WAS INDIFFERENT TO HISTORY So reads the scholarly literature. Students of Bentham such as Sir Henry Maine, Leslie Stephen, and John Plamenatz all agree that Bentham's utilitarianism was divorced from history. Bentham himself provides direct evidence of this assessment. To be sure, he said, legal reform requires the use of history, but is from the folly not from the wisdom of our ancestors that we have so much to learn.' Against this consensus and, indeed, against Bentham's own denial of the utility of history,2 this paper directs our attention to Bentham's use of notions of time and history against history as conventionally understood. Three arguments are offered. The first is that Bentham's formal jurisprudence and proposals for legal reform incorporate elements of natural or hypothetical history an explanation of the past, present, and future in opposition to the uses of the past as authoritative. The second is that Bentham's schemes of indirect legislation and political-religious reforms presume this countertheory of history and seek to make it authoritative in the future. The last argument is that liberal interpreters of Bentham utilize elements of this same countertheory of history both in criticizing and in defending Bentham's legal theory. Re.ntham did nnt invent natulrnl or hvnothetical hiktnrv Its 0tr.c-