Abhishek Kumar, Chanakya National Law University, Patna
ABSTRACT
In this research paper we examine the topic legal fiction as the basis for a progressive society legal fiction refers to the legal presumption that may or may not plan with the actual facts of a case. It is employed to overcome practical or conceptual obstacles that fill legislative gaps, and ensure a just and equitable outcome.
Basis of progressive society in jurisprudential context refers to the idea that the law should constantly evolve and change to reflect the changing needs and values of society. Progressive society is adverse to the idea of a static society, in which the law is fixed and unchanging.
Sir Henry James summer Maine who took education from university of Cambridge and later joined as professor in the same university in 1847, was one of the first to articulate the concept of progressive society in his book Ancient Law 1861. He argued that societies progress through a series of stages. In status based societies, the law is determined by one's position in the social hierarchy, such as one's family or clan. Though in contract-based societies, the law is based on the free will of individuals to enter into agreements with each other. He argued that the certain changes are desired in the law. they have to effected deliberately with the conscious desire of development and the societies that continue development of law are called progressive society According to Sir Henry Maine there are three methods through which progressive societies develop their laws. They are: legal fiction equity and legislation.
Along with Sir Henry Maine, other professor of jurisprudence in oxford University Prof. HLA Hart also defined legal fictions as “statements which are not literally true but which are made for the purpose of facilitating the application of the law. Hart argued that legal fictions are necessary for the law to function effectively. He also acknowledged that legal fictions can be problematic. They may lead to injustice, and they may make the law more difficult to understand. Because of these reasons, Hart argued that legal fictions should be used with caution.
HLA Hart also described progressive society as a society that is characterized by the increasing importance of individual freedom and choice. It is in contrast to a static society, which is characterized by traditional and hierarchical relationships. He also argued that progressive societies are characterized by a movement from status to contract. In a status-based society, individuals are born into certain roles and statuses, and their rights and obligations are determined by those roles. But In a contract-based society, individuals are free to enter into agreements with each other, and their rights and obligations are determined by those agreements.
He believed that progressive societies are more just than static societies because they give individuals more freedom and choice. Hart's theory of progressive society faces many criticisms despite which, it remains an important contribution to legal and political thought and provides a framework for relationship between law, society, and justice.
On the basis of view point given by the above mentioned two jurist we can study how law can develop through the legal fiction by various legislation and also see Can legal fiction is the basis for progressive society?
Our objective in this research is to understand the henry Maine’s contribution to historical jurisprudence. And to assess the impact of legal fiction on the development of progressive societies.
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