Maine on Status and Contract

These two extracts are from Sir Henry Maine's 1861 book Ancient Law. Maine was an ideological liberal who sought, in this book, to find a pattern of progressive development in the history of law in the West. The “ancients” of his book's title were the Greeks and Romans, but he followed the 18th Century tendency to use “the ancients” as examples of  non-Western society in general. In the following passages, Maine lays out his major thesis and, in doing so, gives a fine demonstration of how liberal individualism is expressed in modern Western legal argument and legal systems. Maine's ideas of status and contract are used to create polar “ideal types” of modern and archaic societies. While Maine's understanding of “status” societies doesn't work, the contrast he develops is more useful than most primitive/modern distinctions of his era, as it builds upon what is in fact a diagnostic feature of modern Western ideologies and perspectives: contractual individualism. It is worth noting that British social anthropology of the mid-20th century was, through Radcliffe-Brown, heavily influenced by Maine, especially in its legalistic vocabulary and imagery. This passage is also suggestive of Tylor's later notions of "survival" and "revival".

    The movement of the progressive societies has been uniform in one respect. Through all its 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 organization 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. Thus the status of the Slave has disappeared -- it has been superseded by the contractual relation of the servant to his master. The status of the Female under Tutelage, if the tutelage be understood of persons other than her husband, has also ceased to exist; from her coming of age to her marriage all the relations she may form are relations of contract. So too the status of the Son under Power has no true place in the law of modern societies. If any civil obligation bind together the Parent and the child of full age, it is one to which only contract gives its legal validity. The apparent exceptions are exceptions of that stamp which will illustrate the rule. The child before years of discretion, the orphan under guardianship, the adjudged lunatic, have all their capacities and incapacities regulated by the Law of Persons. But why? The reason is differently expressed in the conventional language of different systems, but in substance it is stated to the same effect by all. The great majority of jurists are constant to the principle that the classes of persons just mentioned are subject to extrinsic control on the single ground that they do not possess the faculty of forming a judgment on their own interests; in other words, they are wanting in the first essential of an engagement by Contract.
    The word Status may be usefully employed to construct a formula expressing the law of progress thus indicated, which, whatever its value, seems to me to be sufficiently ascertained. All the forms of Status taken account 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 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....

    There are few general propositions concerning the age to which we belong which seem at first sight likely to be received with readier concurrence than the assertion that the society of our day is mainly distinguished from that of preceding generations by the largeness of the sphere which is occupied in it by Contract. Some of the phenomena on which this proposition rests are among those most frequently singled out for notice, for comment, and for eulogy. Not many of us are so unobservant as not to perceive that in innumerable cases where old law fixed a man's social position irreversibly at his birth, modern law allows him to create it for himself by convention; and indeed several of the few exceptions which remain to this rule are constantly denounced with passionate indignation. The point, for instance, which is really debated in the vigorous controversy still carried on upon the subject of negro servitude, is whether the status of slave does not belong to by-gone institutions, and whether the only relation between employer and labourer which commends itself to modern morality be not a relation determined exclusively by contract. The recognition of this difference between past ages and the present enters into the very essence of the most famous contemporary speculations. It is certain that the science of Political Economy, the only department of moral inquiry which has made any considerable progress in our day, would fail to correspond with the facts of life if it were not true that Imperative Law had abandoned the largest part of the field which it once occupied, and had left men to settle rules of conduct for themselves with a liberty never allowed to them till recently.
    The bias indeed of most persons trained in political economy is to consider the general truth on which their science reposes as entitled to become universal, and, when they apply it as an art, these efforts are ordinarily directed to enlarging the province of Contract and to curtailing that of Imperative Law, except so far as law is necessary to enforce the performance of Contracts.
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