Maine’s Conceptualization of the Society

Maine’s Conceptualization of the Society

There is quite an extensive discontentment with the present theories on jurisprudence that exist. This is due to the fact that they are of imprecise verdicts that they do not really find a solution to the problems they aim to dispose of. They do not take into consideration what the law was originally about in the past eras far from the express period at which they came into existence. The authors of these theories distinctively observed the situations of their own and that of other ages and civilizations with which they had some extent of intellectual sympathy. However, when they tried to concentrate on anachronistic dispositions of the society that displayed more peripheral contrast from their own, they all stopped observing and began approximating.

Maine’s Conceptualization of the Society

The theories on legal development, according to Sir Henry James Sumner Maine’s points out sequential steps or phases that all progressive societies must go through. Each of the steps emerges from the one before it and puts down the foundation necessary for its evolution into the next phase. As stated by Sir Henry Maine, the societies are of two types. He identifies the first one as the progressive societies and describes it as those who go past the codification stage of development of law. These progressive societies establish their laws by the three approaches. These methods include equity, legal fiction and legislation (Kumar). Another type which he recognizes is the static societies. When the primitive law has been encapsulated and given form, then their unconstrained development comes to an end. These communities or societies that do not alter or go past the final phase of development, therefore, are referred to as static societies.

The evolution of law, as defined by Sir Henry, is based on the pilot forms of legal impressions. The first precedential phase was the judicial system emanating from the rulings made by kings as they were not related to each another in some systematic progression, therefore, did not count as an absolute and binding decree. They were considered to be no more than orders. The next phase develops out of valiant aristocracy, which then replaces or substitutes it. The stage entails the pre-eminence of primacies such as the kingships. As such, it tries to control the understanding of various laws, having sole ownership of the qualities by which solutions to disputes can be decided. From aristocracy sequentially comes forth the era of customary law and lastly, codification. According to Sir Henry Maine, the Patriarchal Theory is based on the argument that the communities or societies develop from the basic household. That is, the oldest male is absolutely foremost in his family and that the community is structured as an accretion of families and not as a collection of individuals (Bista).

Engels’ Conceptualization of the Society

Friedrich Engels, conversely, examines the dispositions of individual ownership of property, crises, trade and competition at the currently developing new industrial society. Engels’ research could be considered unsystematic and overly virtuous, although it comprises of some useful discernment to the latest capitalist’s economy, bringing forth his primary dedication to revolutionary arguments and metamorphosis of the society.

Engels also summarizes his ideology as a suitable form of differentiation between the commercial system and contemporary economics. Thus, it takes on the rationality of monopolization and progresses to a new approach to trade. Whereas competitiveness was the economist’s most essential category, he implies that it only resulted in the privatization of assets, causing an innately mercurial economic state filled with disputes and disasters. Engels’ assessment of the latest modern market economy is exceedingly based on morality. He describes Malthus’ theory on the population as “the crudest, most barbarous theory that ever existed, a system of despair which struck down all those beautiful phrases about philanthropy and world citizenship. The premises begot and reared the factory system and modern slavery, which yields nothing in inhumanity and cruelty to ancient slavery” (CW3, 420). He adds that trade is legalized fraud (422).

The Marxist theory by Marx and Engels has the various five stages that include the primitive communism stage, the imperialism stage, the feudalism stage, the capitalism stage, socialism and communism stages. The first stage is talking about how man worked together to survive. During this era, there was no class. The second stage explains that the strongest man will prevail. Hence, man began to acquire personal property for themselves. The Feudalism stage, according to the theory, came as a result of the autocracy who owned land and food and exploited the peasants who worked for them.

Another stage was the capitalism, where the wealthy merchants that had been formed by the autocracy gained political power over the peasants. However, the peasants would overthrow them once they became politically aware. The fifth stage was about the workers coming up and ensuring equal distribution of food and property. The middle class would come to appreciate the higher value in equality as compared to private ownership. Lastly, the communism stage was where everyone would join together for the common good. Moreover, money would not be needed any longer, and there would be no class as well.

Conclusion

Sir Henry Maine is reprehended for underestimating the nature and design of early society because the inflexibility of the law has continuously been questioned by present-day anthropologists who are of the belief that the uncivilized peoples were adaptable and their laws flexible as well. Unlike Engel, Sir Henry bases his theory on the degree of rigidity of the law for the period used in his research work. Conversely, prevailing criticism insinuates that Engels “painted a one-sided picture of the conditions of the English working classes at the time, overemphasizing the well-being of the workers before industrialization and the subsequent impact of the machine upon them” (Hunley 1991Unlike Maine, Engels theory on the society is entirely based on morality.