Maine, Ancient Law | Kessler, Gilmore & Kronman | August 27, 2012


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From Status to Contract and Beyond

SIR HENRY MAINE, ANCIENT LAW 163-165 (1864): "The movement of the progressive societies has been uniform in one respect. Through allits course it has been distinguished by the gradual dissolution of family dependency, and the growth of individual obligation in its place. The Individual is steadily substituted for the Family, as the unit of which civil laws take account. The advance has been accomplished at varying rates of celerity, and there are societies not absolutely stationary in which the collapse of the ancient organisation can only be perceived by careful study of the phenomena they present. But, whatever its pace, the change has not been subject to reaction or recoil, and apparent retardations will be found to have been occasioned through the absorption of archaic ideas and customs from some entirely foreign source. Nor is it difficult to see what is the tie between man and man which replaces by degrees those forms of reciprocity in rights and duties which have their origin in the Family. It is Contract. Starting, as from one terminus of history, from a condition of society in which all the relations of Persons are summed up in the relations of Family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of Individuals. In Western Europe, the progress achieved in this direction has been considerable.

"The word Status may be usefully employed to construct a formula expressing the law of progress thus indicated, which, whatever be its value, seems to be me to be sufficiently ascertained, All the forms of Status taken notice of in the Law of Persons were derived from, and to some extent are still coloured by, the powers and privileges anciently residing in the Family. If then we employ Status, agreeably with the usage of the best writers, to signify these personal conditions only, and avoid applying the term to such conditions as are the immediate or remote result of agreement, we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract."[1]

[1] This does not mean that Maine underestimated the role of contract in feudal society (see 323).

The master who taught us that "the movement of the progressive societies has hitherto been a movement from Status to Contract," was quick to add that feudal society was governed by the contract. There is no paradox here. In the really feudal centuries men could do by a contract, by the formal contract of vassalage or commendation, many things that can not be done now-a-days. They could contract to stand by each other in warfare "against all men who can live and die"; they could (as Domesday Book says) "go with their land" to any lord whom they pleased; they could make the relation between king and subject look like the outcome of agreement; the law of contract threatened to swallow up all public law. Those were the golden days of "free," if "formal," contract. The idea that men can fix their rights and duties by agreement is in its early days an unruly, anarchical idea. If there is to be any law at all, contract must be taught to know its place.

For an evaluation and criticism of Maine's thesis, see Pollock's Notes Land R to the 1930 edition (190-193, 386-388); Isaacs, The Standardizing of Contracts, 27 Yale L.J. 34,47 (1917) (Describing the development of status law, i.e., the standardizing of an increasing number of contractual relationships in which society has an interest. Status law in many instances increases "social enfranchisement," i.e., freedom in a positive sense. See further, Rehbinder, Status, Contract and the Welfare State, 23 Stan. L. Rev. 941 (1947); Macneil, The Many Futures of Contract, 47 S. Cal. L. Rev. 691 (1974); on Maine, see further P. Stein, Legal Evolution, ch. 5 (1980).


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