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Updated: Jul 30, 2021

Agencies by which Law is brought in harmony with society, are three in number : Legal Fictions, Equity and Legislation". Henry Maine

The spontaneous development of the primitive law, came to an end with the codes. In fact, a new era began with the codes, and a line could be drawn between primitive societies which became static, and, the progressive societies, which made improvements. These progressive

societies, were a few in number, e.g. Roman Society.


Social necessities and social opinion were always in advance of law. However, law was stable, but society progressive. Thus, there was a gap between such a society and, the law. According to Sir Henry Maine, this gap was filled up by bringing law into harmony with the society, with the instrumentalities : legal fiction, equity and Legislation.

The development was also in the same order of sequence: First Legal fiction, second and Equity and then Legislation.According to Sir Henry Maine, the "agencies by which Law is brought in harmony with society, are three in number :

Legal Fictions, Equity and Legislation

1. Legal Fiction :

"Fiction", in old Roman Law was a "term of pleading". It was a false averment by the plaintiff which he would aver before the court, that he was a Roman citizen, though in reality, he was a foreigner. The objective was to give the court, the jurisdiction to try the case. Later, the term "legal fiction" began to signify any "assumption which concealed the fact that a rule of law had changed, in its operation, but had not altered in its letter. In Roman Law, in fact social progress was possible because the fictions helped to overcome the rigidity of law, e.g. the concept of adoption. The fiction was that the adopted child was the child of the adoptive parents, and, that such an adopted person could succeed to the properties of the adoptive parents, and the family genealogy would continue.

2. Equity :

It was a body of rules based on some distinct principles and claiming to supersede civil law. The sanctity of them was inherent in the principles themselves, and their interference with law was direct and open. They were different from legislation, inasmuch as, they originated from some sacred principle and were independent of the consent of any group of persons like the Legislature.

3. Legislation :

This refers to the Acts made by the Legislature. This is the third ameliorating instrumentality. The legislation was by the Parliamentary assembly or an autocratic prince. The authority came from such an external authority or person. It could impose obligations on the community and there was nothing to prevent its caprice. Its binding force came from the authority of the Legislature itself. If a particular enactment was based on some equity, the binding force came from the legislature , and not from the sanctity of equity.

Two instances of Legal fiction : Sir Henry Maine had detected legal fiction in two glaring developments.

i) Precedents :

English legal system was full of case law and judicial precedents. Sometimes the decisions modified the existing law ; sometimes the change made, was not easily detectable. Judges of the 13th Century drew heavily from the "compedia" of Roman & Canon Laws ; but when Legislation made innumerable enactments, this tendency ceased. English Common Law was composed of equity (court of chancery) and of law made by the Parliament.

Roman Responsa Prudentium :

This closely resembled the judicial precedents. 'Responsa Prudentium'meant the answers of the learned in the law. These were explanatory glosses (interpretations) on written documents like the Twelve Tables.The fiction was this : The Table or the texts were to remain unchanged.But, in reality he "Books of Responses" showed that the text was constantl modified, extended recorded and edited by the pupils of the great jurisconsults.These were called the "Institutes" or "Commentaries". It was through theseresponses that Roman Law developed. By the time of the fall of the RomanEmpire, these responses were becoming more systematised and reduced int"compendia". Mucius Scaevola, the Pontifix, had published a manual of civil law.The Edict i.e., the annual proclamation of he Praetor mainly gained prominence for law reform. The final blow to responses come from Augustus. He restricted the jurisconsults to confine themselves to the cases referred to them. In later years, Ulpain, Paulus, Gaius and Papinian wrote elaborate treaties, based on Praetor,s Edict.

Legislation : In Rome, it was scanty during the Republic, but became very voluminous under the Roman Empire. Legislation was directed to remove some great abuse, or to set right decisions between classes or dynasties. In fact, to settle he Roman society's great civil commotion, he Roman's solution, was the making of large body of statues. Sylla, Julius Caesar, Augustus Constantine and others desired to the Roman Society by making a number of statutes. However,the true period of Roman statute law,began only with establishment of the Roman Empire.

Conclusion :

Sir Henry Maine, having detected the gap between the law and the progressive society has also elaborated hat this gap was filled by legal fiction. Equity and Legislation. His findings are commendable and noteworthy.


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