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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