Henry Maine’s “Modern Law”: From Status to Contract and Back Again?†

Abstract

In this Article, I conduct a long overdue assessment of Henry Maine’s “from Status to Contract” thesis in light of two essentially modern phenomena: contract standardization and relational contracting. Drawing on comparative legal history, classical sociological and anthropological literature, contemporary contract law theory, and recent works in the field of (behavioral) law and economics, I discuss the claim that modern private law is witnessing a reverse movement “from Contract to Status.” I show that this claim is historically inaccurate and conceptually simplistic in that it attributes shades of meaning to status that Maine never contemplated. I dedicate the remainder of the Article to exploring why—in the face of clear countervailing evidence—modern private law scholars continue to engage in Mainean “status”-speak. For this purpose, I tease out several interesting parallels between status as part of Maine’s theory and “status” as part of modern private law discourse. I firstly suggest that scholars mirror Maine’s thesis with their argument that interpersonal rights and obligations frequently result from naturally occurring societal processes that the law normatively reflects; conversely, that said rights and obligations are not necessarily the result of private-autonomous agreements between freestanding individuals. While this argument strikes me as plausible, the conceptual problems that transplanting Maine’s categories into contemporary private law discourse entails call for additional justification. I therefore, secondly suggest that it is the directional appeal of Maine’s linear or absolutist view that has led modern private law scholars to engage in Mainean “status”-speak. In order to assess the defensibility of this claim, I consider whether the “from Status to Contract and back again” thesis has any merit. Are we witnessing a reverse movement from the mostly private-autonomous creation of contractual rights and obligations to the heteronomous imposition of such rights and obligations on the part of society or the state? To answer this question, I examine a variety of conceptual forces struggling for dominance in modern private law. Two complementary tensions present themselves as relevant to my discussion: the tension between freedom of contract and constitutional paternalism, and the tension between perfect contracting solutions and second-best alternatives. I go on to show that “status”-like elements—i.e., elements that play on the rhetoric and directionality rather than the substance of Maine’s thesis—and contractual elements interact to mediate both tensions. Linear (or absolutist) and dialectical (or “pendulum swing”) theories of socio-legal evolution consequently fall short. Mainean “status”-speak is equally unable to account for the conceptual interaction that my discussion brings to light. To clarify any such interaction between “status”-like and contractual elements, I introduce, explain, and to some extent defend, two hybrid types—contract-status and status-contract. These hybrid types, I argue, go some way toward capturing current tendencies in modern private law. Inconsistencies, however, remain even if we reconstruct modern private law along the lines of contract-status and status-contract. Hence, I call for an update of modern private law’s terminological toolbox. To this end, it is imperative to draw on Maine’s very own methodological postulates. Contemporary scholars intent on saying anything of interest about modern private law would thus be well-advised to emulate Maine’s approach of combining empirical inquiry into economy and society with categories and concepts from the realm of legal theory—all the while freeing themselves from the overbearing influence of his original, loaded categories. In light of these exhortations, I look at one final answer to the question of why modern jurists continue to engage in Mainean “status”-speak. Might increasing references to Maine’s conceptual categories be evidence of a rediscovery of the value of macro-historical approaches for engaging critically with (private) law as a fundamental social institution? I contend that employing such macro-historical approaches is indeed necessary if modern jurists are to take seriously their duties as members of the legal profession, as participants in a broader intellectual and academic discourse, and as citizens of their respective societies.