Schmidt

Henry Maine’s “Modern Law”
Author(s): KATHARINA ISABEL SCHMIDT
Source: The American Journal of Comparative Law , SPRING 2017, Vol. 65, No. 1
(SPRING 2017), pp. 145-186
Published by: Oxford University Press
Stable URL: https://www.jstor.org/stable/10.2307/26425333
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KATHARINA ISABEL SCHMIDT*
Henry Maine’s “Modern Law”: From Status
to Contract and Back Again?†
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
* LL.B./Baccalaureus Legum (London/Cologne), B.C.L. (Oxon), LL.M.
(Yale), J.S.D. candidate in Law at Yale Law School, and Ph.D. student in History
at Princeton University. First and foremost, I would like to thank the anonymous reviewer for his or her patience, criticism, and encouragement. I also gratefully acknowledge comments on previous drafts of this Article by Michele Landis
Dauber, Hendrik Hartog, Joseph Manning, David Marcus, John Nann, and James Q.
Whitman. Finally, I would like to thank Tara Maria Davenport, Tomas Dumbrovsky,
Noam Finger, Ryan Greenwood, David Harbecke, Adrian Künzler, Erlend M.
Leonhardsen, Lucas Mac-Clure, Daniel Maggen, Gregor Novak, Brent Salter, Tal
Sela, Bo Tiojanco, Ben Zdencanovic, and the participants of the Yale Law School
Doctoral Colloquium 2015, the Stanford Inaugural Conference for Junior Scholars in
Law & Society 2014, and the Yale Law School Graduate Program Works-in-Progress
Symposium 2013 for their kind, patient, and helpful advice.
† http://dx.doi/org/10.1093/ajcl/avx022
© The Author [2017]. Published by Oxford University Press on behalf of the American
Society of Comparative Law. All rights reserved. For permissions, please
e-mail: journals.permissions@oup.com.
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145
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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 privateautonomous 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 welladvised 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.
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Introduction
In his seminal 1861 treatise, Ancient Law, English jurist Henry
Maine stated that “the movement of the progressive societies has
hitherto been a movement from Status to Contract.”1 What Maine
meant by “Status” were the various relational and often hierarchical networks that determined the rights and obligations of a person
in premodern society. Premodern societies, according to Maine, were
characterized by various tribal, kinship, and family relations. These
relations specified a person’s place in society, including their prospects of trade and marriage. Maine’s aphorism has been criticized as
oversimplistic, unsupported by anthropological evidence, and motivated by misguided Victorian beliefs in the linear progress of sociocultural evolution. Its truth value in relation to modern contract law
is nevertheless undeniable. Contract law, by the twentieth century,
had come to be based on liberal principles. Individuals could create
rights and obligations with one another regardless of who they were.
Yet the rise of contract standardization and relational contract
theory have since led modern private law scholars to cast doubt on
Maine’s claim. Their critique goes as follows: People’s rights and
obligations in modern society are—more so than ever—determined
by reference to personal or “status”-based attributes. Consumers are
increasingly limited in their ability to determine the content of their
contracts with businesses and other commercial actors because they
are consumers. Similarly, sociological inquiry into contractual relations has shown that parties’ rights and obligations are frequently
determined by noncontractual factors such as the personal relationship between the parties and their respective hierarchical standing
based on social, political, and economic attributes. It is against the
background of this critique that I assess the value of Maine’s “from
Status to Contract” thesis for modern private law.
In Part I, I provide a brief overview of Maine’s biography and
the ideological and intellectual background of his work. Paying particular attention to his Victorian ideas about history and progress,
I set out Maine’s general thesis about the movement from status to
contract. This, I hope, will clarify the specific way in which Maine
employed the concept of status. I also integrate Maine’s thesis
into his more general theory about the nature of socio-legal evolution. I then address conventional lines of criticism launched against
Maine’s theory in Part II. On the one hand, I present the methodological, ideological, and substantive flaws that characterize Maine’s
Ancient Law. On the other hand, I show that—despite countervailing
historical and anthropological evidence—his thesis about the movement from status to contract has proven remarkably relevant.
1. Henry Maine, Ancient Law: Its Connection with the Early History of Society
and I ts R elation to M odern I deas 101 (J.H. Morgan ed., J.M. Dent & Sons Ltd.
1917) (1861) [hereinafter Ancient Law].
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At the same time, I suggest that the true litmus test for Maine’s
thesis is whether it has anything interesting to say about the current
state or future of modern private law. Problematically, scholars have
assigned different meanings to Maine’s substantive claim. “Status,”
in particular, has been subject to various—and frequently inconsistent—interpretations. “Status” today is used in a broader sense
than Maine had originally intended. It has come to be understood as
encompassing both “ascribed” and “achieved” conditions. It has also
come to be seen as denoting both paternalistic and relational limitations on individuals’ capacity to private-autonomously determine
their rights and obligations.
A considerable amount of conceptual confusion has developed
around Maine’s thesis in recent years. In Part III, I therefore assess
whether it is possible to integrate contract standardization and
relational contract theory into the general narrative presented in
Ancient Law. Does the argument that modern private law is witnessing a reverse movement “from contract to status” have any merit?
I go on to show that this revisionist account attributes shades of
meaning to the term status that Maine never contemplated. Neither
standardization nor relational contracting can, with due historical
and conceptual accuracy, be described as modern instances of status.
I therefore dedicate the remainder of the Article to exploring why
modern private law scholars, in the face of clear countervailing evidence, continue to promote Mainean “status”-speak.
For this purpose, I consider whether the phenomenon Maine was
describing by reference to status and the phenomenon modern private law scholars are describing by reference to “status” may be sufficiently similar to merit this kind of terminological continuity. We
can draw at least one interesting parallel between status as part of
Maine’s theory and “status” as part of modern private law discourse.
That parallel is the following: modern private law scholars mirror
Maine’s “from Status to Contract” thesis with their argument that
interpersonal rights and obligations are frequently the result of naturally occurring societal processes that the law normatively reflects;
conversely, said rights and obligations are not necessarily the result
of private-autonomous agreements between freestanding individuals.
This parallel, however, is insufficient to justify transplanting
Maine’s original categories into contemporary private law discourse
given the conceptual difficulties this process entails. Might it not
be the linear, directional theory of socio-legal evolution underlying Maine’s aphorism that has led modern private law scholars to
continue to promote use of the term “status”? In Part IV, I consider
whether the argument that modern society is witnessing a 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 and the state has any merit.
For this reason, I examine a variety of conceptual forces struggling
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for dominance within twentieth- and twenty-first-century private
law discourse.
Drawing on comparative, historical, and theoretical insights,
I identify two complementary tensions that are relevant to our discussion: the tension between freedom of contract and constitutional
paternalism; and the tension between perfect contracting solutions and second-best alternatives. I then 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 these tensions. Based on this reconstruction, I go on to delegitimize use of the term “status” in modern
private law due to the linearity, one-directionality, and conceptual
inertia it implies. In order to clarify any postulated nonlinearity,
multi-directionality, and interaction between “status”-like and contractual elements, I introduce, explain, and to some extent defend
two hybrid types—contract-status and status-contract—that more
adequately capture current tendencies in modern private law.
Conventional attempts at describing modern legal developments
in terms of Maine’s directional status/contract dichotomy have taken
two forms. On the one hand, theorists have adopted a linear (or absolutist) view, thus over- or underplaying the relevance of “status”-like
elements in modern contract law. On the other hand, theorists have
argued in favor of a dialectical (or “pendulum swing”) relationship
between contract and “status”-like elements, suggesting that the
alternating demands of history force the law to oscillate between
the two ends of an ideal-typical “status”/contract spectrum. The two
hybrid types I propose—contract-status and status-contract—in turn
take adequate account of both the “status”-like and the contractual
dimension of modern private law.
Inconsistencies, however, remain even if contract standardization and relational contracting are reconceptualized in terms of my
hybrid notions. In particular, these hybrid notions fail to provide
much insight into the specific and complex ways in which contractual and “status”-like elements interact to reinforce, undermine,
substitute, supplant, and supersede one another. In light of this,
I conclude that an updating of modern private law’s terminological
toolbox is necessary. By reference to the methodological postulates
espoused by Henry Maine more than 150 years ago, I suggest in Part
V that interesting answers to the question as to what, if anything,
is “modern” about our contemporary private law can only be found
through a combination of empirical inquiry into economy and society
with categories and concepts from the realm of legal theory.
I then suggest one final explanation for why “status” has
recently recaptured the imagination of modern jurists. Could
increasing references to this particular category be evidence of
scholars’ rediscovery of macro-historical approaches? Looking at
the big picture allows us to engage critically with (private) law as
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a fundamental social institution. I therefore contend that employing such macro-historical approaches is in fact 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.
I. Henry Maine: From Status to Contract
I begin by surveying Maine’s biography and the intellectual and
ideological background of his work (A). I then set out Maine’s general
thesis about the movement from status to contract, placing particular emphasis on his concepts of status and the family as well as on
his theory of socio-legal evolution (B).
A. Biography and Historical Background
As is the case with many extraordinary thinkers, Maine’s scholarly achievements are inextricably interwoven with his own life
story and the socio-political currents of his time. For this reason, the
following section integrates Maine’s thesis about the movement from
status to contract with his biography as well as with the ideology
and ideas prevalent in Victorian England.
Henry James Sumner Maine was born in Kelso, Roxburghshire,
in 1822.2 After studying classics at Pembroke College, Cambridge,
he became tutor of Roman Law at Trinity College, Cambridge, at
age twenty-five. He was appointed Regius Professor of Civil Law
shortly after. In 1852, Maine was additionally appointed as Reader
at the Inns of Court in London. At around the same time, he began
working on a manuscript about the historical development of law
in the ancient world. Parts of Ancient Law were in fact first set out
as lectures delivered in London’s Middle Temple. Influenced by the
German Historical School and critical of the practice orientation of
legal education at the time, Maine’s aim was to revive jurisprudence
as a comparative, historical, and philosophical discipline.
Upon its publication in 1861, Ancient Law—according to Hoebel
“the pre-eminent work on the origin and nature of primitive legal
institutions”3—was received to wide acclaim. To no small extent, this
was due to the fact that Maine’s project—the reconstruction of historical origins and logic of particular socio-legal institutions—vindicated individualistic and forward-looking tendencies in Victorian
2. For a detailed account of Maine’s life and work, see R.C.J. Cocks, Sir Henry
Maine: A Study in Victorian Jurisprudence (1988); George Feaver, From Status to
Contract: A Biography of Sir Henry Maine 1822–1888 (1969); Mountstuart E. Grant
Duff, Sir Henry Maine: A Brief Memoir of His Life (New York, Henry Holt & Co.
1892). For a short summary, see also David Rabban, Law’s History—American Legal
Thought and the Transatlantic Turn to History 115–49 (2013).
3. Edward A. Hoebel, Fundamental Legal Concepts as Applied in the Study of
Primitive Law, 51 Yale L.J. 951, 951 (1942).
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politics, philosophy, and economics.4 Particularly, Maine’s argument
about the evolutionary logic of history was met with enthusiasm
similar to that inspired by Darwin’s theory of biological evolution.5
Darwin’s On the Origin of Species was published two years before
Ancient Law by the same publishing house. There is a good chance
that Maine was influenced by this work or at least considered himself to be writing in the same tradition.6
Maine’s principal argument concerned the development of
“primitive” to “progressive” societies. Ancient Law covered the early
history of wills, property, contract, and criminal law. With regard
to each, Maine emphasized the contrast between the family and
the individual as the basic unit of which the law took account. The
main thesis advanced in Ancient Law, if not the “manifesto of his
life work,”7 was that progressive societies had moved from “Status”
to “Contract.” In modern society, individual rights and obligations
had come to be created through contracts seen as embodying modern
ideas like liberty and individualism. Not so for “individual” rights
and obligations in premodern society.
According to Maine, the particular place into which an individual had been born as part of a given family or kinship group exhaustively determined that individual’s legal standing: their prospects of
trade and marriage and the entitlement to decide what happened to
their property after death. To Maine, enhanced “moral consciousness”
was behind increasing contractual freedom in progressive societies.
For this reason, the only people whose rights and obligations ought
to be fixed according to their status were to be those that “do not possess the faculty of forming a judgment on their own interests.”8
Following the success of his first work and with no slight regard
to its ideological overtones, Maine was appointed to the prestigious
position of Anglo-Indian administrator in 1862. He spent the next
seven years of his life in India. To Maine, this “extended field trip”
4. Morris R. Cohen, The Basis of Contract, 46 Harv. L. Rev. 553, 558 (1933)
(“[The support of Maine’s dictum] had its roots in the general individualistic philosophy that manifested itself in modern religion, metaphysics, psychology, ethics,
economics, and political theory.”); George Feaver, The Victorian Values of Sir Henry
Maine, in The Victorian Achievement of Sir Henry Maine 28, 28 (Alan Diamond ed.,
1991) [hereinafter Victorian Achievement] (arguing that Maine’s work “epitomized
the spirit of an age”).
5. See, e.g., J.H. Morgan, Introduction to A ncient L aw , supra note 1, at vii
(“[Ancient Law’s] epoch-making influence may not unfitly be compared to that exercised by Darwin’s Origin of Species.”). See also Feaver, supra note 2, at 43–45.
6. On the evolutionary tradition in Anglo-American jurisprudence and its connection with Darwin, see Kunal Parker, Common Law, History, and Democracy in
America, 1790–1900, at 228 (2011); E. Donald Elliott, The Evolutionary Tradition
in Jurisprudence, 85 Colum. L. Rev. 38 (1985). See also Herbert J. Hovenkamp,
Evolutionary Models in Jurisprudence, 64 Tex. L. Rev. 645 (1985), as well as more
recently, H erbert H ovenkamp , T he O pening of A merican L aw : N eoclassical L egal
Thought, 1870–1970, at 3, 25–26 (2014) (“Maine had probably not read Darwin.”).
7. Feaver supra note 2, at 56.
8. Maine, supra note 1, at 100.
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was not only of professional interest.9 It also had specific scholarly
value. Maine thought it possible to reconstruct the rudiments of the
earliest “Aryan” social and legal institutions on the basis of structures still present in India at the time.10 In his capacity as expert
advisor to the Indian government, Maine was tasked with replacing
the country’s alleged status-based social order with Western-style
legal rules. In a way, Maine had been given the opportunity to turn
Ancient Law’s principal thesis into a “self-fulfilling prophesy.”11
After his return from India in 1869, Maine was appointed to
the newly created Professorship of Jurisprudence at the University
of Oxford. Drawing on his experiences in India, he responded to
growing methodological criticism of Ancient Law by publishing
his second book, Village Communities in East and West, in 1871.
Village Communities traced the development from communal
to individual land ownership in premodern India. Maine clearly
intended to confirm his initial thesis about private property as a
relatively recent civilizational achievement. His subsequent book,
Lectures on the Early History of Institutions (1875), examined
ancient Irish Brehon tracts. To vindicate his earlier arguments
about the role of family and kinship, Maine made a point of going
beyond Roman legal materials. In a similar vein, his Dissertations
on Early Law and Custom (1883) analyzed the influence of religion
and the authority of the king on the development of institutions in
premodern society.
Beginning with his delivery of the prestigious Rede Lecture
at the University of Cambridge in 1875, Maine became increasingly concerned with the practical implications of his findings. He
called for the application of his historical-comparative method to all
“Aryan” institutions to create what Feaver referred to as a “new evolutionary science of man.”12 Angered by transfers of power from liberal-conservative to collectivist-progressive forces in Britain, Maine
began to actively criticize the rise of democratic legislation. It is particularly his last work, Popular Government (1885), that ties together
some of the ends left loose in Ancient Law. Notwithstanding the possibility that Maine’s views changed in the face of altering political
9. Henry Maine, Indian Statesmen and Indian Scribblers, S aturday R ev .
(London), Oct. 24, 1857, at 361.
10. Feaver, supra note 2, at 64 (“[Maine’s stay in India] was to confirm his belief
that India was a living monument to the past, where the student of antiquities with
an eye for detail could reconstruct the rudiments of the earliest Aryan social and
legal institutions . . . .”).
11. Id. at 73. For the relationship between colonial India and Maine’s thesis
about the movement from status to contract, see generally Bernard S. Cohn, From
Indian Status to British Contract, 21 J. Econ. Hist. 613 (1961); Helmut Janssen, Die
Übertragung von Rechtsvorstellungen auf fremde Kulturen am Beispiel des Britischen
Kolonialrechts (2000).
12. Feaver, supra note 2, at 151.
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circumstances, it is indispensable to read Ancient Law in the context of Maine’s complete œuvre.13 Plagued by poor health all his life,
Maine died in Cannes in 1888 at age sixty-five.
Commentators disagree on Maine’s true legacy. Ancient Law
inspired a general turn to history among English-speaking jurists,
stimulating early “scientific” scholarship in the, up to that point,
largely neglected field of (premodern) legal history.14 His general
thesis about the development of progressive societies also contributed to evolutionary thought popular at the time.15 Maine’s various
writings furthermore facilitated the development and differentiation of sociology and anthropology.16 Tönnies’ distinction between
community (Gemeinschaft) and society (Gesellschaft)17 and Weber’s
distinction between status-contract (Statusvertrag) and purposive contract (Zweckvertrag) 18 reproduce Maine’s status/contract
distinction.19
13. J. Russell VerSteeg, From Status to Contract: A Contextual Analysis of
Maine’s Famous Dictum, 10 Whittier L. Rev. 669, 669 (1988–1989) (“The fundamental
flaw in most analyses of Maine’s famous phrase is that the commentators have failed
to consider what Maine said in context.”).
14. Rabban, supra note 2, at 115 (“Ancient Law popularized historical understandings of law in the English-speaking world and stimulated original ‘scientific’ scholarship in legal history . . . .”). For Maine’s contribution to the field of
comparative legal history, see also Kenneth E. Bock, Comparison of Histories:
The Contribution of Henry Maine, 16 Comp. S tud. S oc’y & Hist. 232 (1974). For
Maine’s role in founding the discipline of comparative law, see Stefan Vogenauer,
Rechtsgeschichte und Rechtsvergleichung um 1900, 76 RabelsZ 1122, 1128ff. (2012).
For Maine’s contribution to the comparative method more generally, see Stefan
Collini et al., The Clue to the Maze: The Appeal of the Comparative Method, in That
Noble Science of Politics—A Study in Nineteenth-Century Intellectual History 207
(Stefan Collini et al. eds., 1983).
15. R abban , supra note 2, at 115 (“Beyond the world of legal scholarship,
Ancient Law was a major contribution to the evolutionary social thought that
attracted scholars in many fields and countries during the middle of the nineteenth
century.”). For the notion of evolutionary jurisprudence, see also sources cited supra
note 6, and more generally P eter S tein , L egal E volution : T he S tory of an I dea
(1980).
16. See Alan D.J. Macfarlane, Some Contributions of Maine to History and
Anthropology, in Victorian Achievement, supra note 4, at 111; J.D.Y. Peel, Maine
as an Ancestor of the Social Sciences, in Victorian Achievement, supra note 4, at
179; Edward Shils, Maine in the Tradition of the Analysis of Society, in Victorian
Achievement, supra note 4, at 179; Feaver, supra note 2, at 58; Matthew P. Bergman,
Status, Contract, and History: A Dialectical View, 13 C ardozo L. R ev . 171, 216
(1991–1992).
17. F erdinand T önnies , C ommunity and S ociety (Charles P. Loomis trans.,
Michigan State University Press 1957) (1887). For a helpful reinterpretation of
Tönnies, see Thomas Bender, Community and Social Change in America 15–43 (1982).
For a discussion of similarities between Maine and Tönnies, see Bergman, supra note
16, at 175–76; Reinhard Zippelius, Verlust der Orientierungsgewißheit, in Recht und
Gesellschaft: FS für Helmut Schelsky 781–82 (1978).
18. Max Weber, Economy and Society (Guenther Roth & Claus Wittich eds. &
trans., University of California Press 1978) (1922). For a discussion of similarities
between Maine and Weber, see Bergman, supra note 16, at 176.
19. Bergman, supra note 16, at 175–76. In addition, Maine’s status/contract
dichotomy is also reminiscent of Karl Marx’s movement from feudalism to capitalism,
Herbert Spencer’s movement from simplicity to complexity, and subsequent theories
based on these distinctions.
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Maine’s contribution to legal scholarship, however, has been
underappreciated.20 In particular, scholars have failed to examine
the complex interplay between status and contract in modern private
law. My Article seeks to remedy this neglect.
B. Maine’s General Thesis
Having taken a brief look at the defining stages of Maine’s scholarly life—among which his training as a classicist, his position as
an Anglo-Indian administrator, and his role as a critical examiner of
Victorian society are most notable—it is now necessary to analyze in
detail the substantive claim at the root of his continuing intellectual
significance. As my discussion up until this point has shown, Maine’s
thesis about the movement of progressive societies rests on his particular concept of status (1), his notion of the ancient family (2), and
his more general theory about the nature of socio-legal evolution (3).
1. The Multiple Meanings of “Status”
As noted by Pollock in his commentary on Ancient Law, Maine’s
reference to status can mean three different things.21 Status may
refer to the totality of a person’s rights and obligations. It may also
refer to someone’s personal rights and obligations (e.g., being a minor
or an “imbecile”) as opposed to their proprietary relations (e.g., being
a tenant or an agent). Finally, it may refer to rights and obligations
imposed upon a person by law and without his or her consent instead
of voluntarily and by way of agreement.22 The many meanings of
status have led to widespread acceptance of Maine’s rhetorical masterpiece. At the same time, they have separated his claim from the
particular point he was trying to make. The conceptual multivalence
of status obscures the value of Maine’s thesis for modern private law.
Smellie suggested that Maine was concerned only with the third
meaning of status. His generalization thus meant little more than
that the—in Hohfeldian terms—disabilities of subordinate members
20. Cf. Rabban, supra note 2, at 147 (“Within jurisprudence . . . Maine’s dominant position waned, eventually reduced to insignificance after World War I. . . .
Even Ancient Law, Maine’s most influential book, lost its place as a standard text
and was no longer read by law students.”); Feaver, supra note 2, at 55 (“Curiously,
Maine’s unorthodox use of such legal concepts has produced a situation where his
views have been more readily accepted by professional sociologists than lawyers.”);
Calvin Woodard, A Wake (or Awakening?) for Historical Jurisprudence, in Victorian
Achievement, supra note 4, at 217, 228 (“So Maine and historical jurisprudence both
fell from lofty perches. Today, I dare say, Maine is better remembered and more discussed by anthropologists than he is by lawyers.”).
21. Frederick Pollock, Introduction and Notes to Sir Henry Maine’s “Ancient
Law” 34–36 (1914).
22. Id. For a description of Pollock’s analysis of Maine’s use of the term status,
see K.B. Smellie, Sir Henry Maine, 22 Economica 64, 74 (1928). See also Otto KahnFreud, A Note on Status and Contract in British Labour Law, 30 Mod. L. Rev. 635,
636 (1967).
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in the patriarchal family had gradually been eroded in favor of the
powers created by way of consensual contracts.23 What Maine really
intended with his juxtaposition of status and contract had been to
draw attention to the contrast between “primitive” collectivism and
progressive individualism. Those parts of Ancient Law dedicated to
topics other than contract support this argument. Maine employed
his comparative-historical method to trace the development of various modern institutions. With regard to each one, he emphasized the
move from collectivist to individualist rationales.
Maine argued that passing on property to bestow individual
material wealth on one’s descendants constituted a relatively modern phenomenon. The function of the will in ancient society had
instead been to allocate collective management responsibility to
the new head of the family.24 Similarly, in the area of property law,
Maine traced the movement from joint/communal ownership structures characteristic of “primitive” society to individual land ownership in later times.25 Finally, he explained the relative abundance of
criminal provisions in “primitive” society by contrast to the relative
scarcity of provisions dealing with private law matters.26 Due to the
fact that individuals’ rights and obligations had exhaustively been
determined by their position in the ancient family, there was no need
to include authoritative standards of private conduct in any of the
ancient codes he examined.
2. Maine’s Notion of “the Family”
Maine’s notion of status hinged on his vision of the ancient family. What Maine meant by “the Family,” however, had little to do with
23. See Smellie, supra note 22, at 74. For Hohfeld’s description of jural relations,
see Wesley Newcomb Hohfeld, Some Fundamental Legal Conceptions as Applied in
Judicial Reasoning, 16 Yale L.J. 28 (1913).
24. Maine, supra note 1, at 109–10 (“The Family, in fact, was a Corporation; and
[the head of the ancient family] was its representative. . . . Corporations never die. The
decease of individual members makes no difference to the collective existence of the
aggregate body, and does not in any way affect its legal incidents, its faculties or liabilities. Now in the idea of a Roman universal succession all these qualities of a corporation
seem to have been transferred to the individual citizen. His physical death is allowed to
exercise no effect on the legal position which he filled, apparently on the principle that
that position is to be adjusted as closely as possible to the analogies of a family, which,
in its corporate character, was not of course liable to physical extinction.”).
25. Id. at 153 (“It is more than likely that joint-ownership, and not separate ownership, is the really archaic institution, and that the forms of property which will
afford us instruction will be those which are associated with the rights of families
and of groups of kindred.”).
26. Id. at 217 (“It may be laid down, I think, that the more archaic the code, the
fuller and the minuter is its penal legislation. . . . It should be recollected that the comparative barrenness of civil law in archaic collections is consistent with those other
characteristics of ancient jurisprudence which have been discussed in this treatise.
Nine-tenths of the civil part of the law practised by civilised societies are made up of the
Law of Persons, of the Law of Property and of Inheritance, and of the Law of Contract.
But it is plain that all these provinces of jurisprudence must shrink within narrower
boundaries, the nearer we make our approaches to the infancy of social brotherhood.”).
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the modern “natural” or nuclear family. Instead, it encompassed a
host of (partly fictive) relations of kinship and power. Maine’s idea
of the patriarchal family was influenced by the Roman notion of
patria potestas. More specifically, he based his analysis of various
socio-legal institutions on the presumption that ancient societies had
consisted of a community of families, each of which was headed by a
male patriarch who possessed theoretically unlimited power over its
members.
Maine’s argument then, was that the transformation from “primitive” to progressive society had uniformly been characterized by the
“gradual dissolution of the family dependency and the growth of individual obligation in its place.”27 As a consequence, “[t]he Individual
[had] steadily [been] substituted for the Family, as the unit of which
civil laws take account.”28 This observation led him to formulate his
famous conclusion that “the movement of the progressive societies
has hitherto been a movement from Status to Contract.”29 As we will
see, it is this particular understanding of the family that has made
Maine’s theory vulnerable to both methodological and substantive
criticism.
3. Maine’s General Theory of Socio-Legal Evolution
Maine himself substantively qualified his thesis about the movement from status to contract. Notably, he achieved this qualification
through the word “hitherto,” which has given rise to considerable speculation over time. Burrow argued that Maine’s reference to the historical specificity of the movement from status to contract evoked a certain
“moral polarity.”30 Maine may have perceived “some higher state of
moral or civilizational development” to be attached to contract.31 There
is thus an arguable connection between the recognition of individual liberty in theory and allowing people to autonomously determine
the architecture of their own fate by way of consensual contracts in
27. Id. at 100.
28. Id.
29. Id. at 101.
30. John W. Burrow, Henry Maine and Mid-Victorian Ideas of Progress, in
Victorian Achievement, supra note 4, at 55, 56–57. See also Cohen, supra note 4, at
553 (“[Maine’s thesis] has generally been understood as stating not only a historical generalization but also a judgment of sound policy—that a legal system wherein
rights and duties are determined by the agreement of the parties is preferable to a
system wherein they are determined by ‘status.’”).
31. Cf. Alan Diamond, Introduction to Victorian Achievement, supra note 4, at
1, 23. See also Kahn-Freud, supra note 22, at 635 (“Not infrequently one can sense
in the statement that the tendency diagnosed by Maine has been reversed, a conscious or unconscious condemnation of a retrograde evolution. Did not Maine link his
famous remark with the analysis of what he called ‘progressive societies?’ Does not
the movement, or rather the alleged movement, from ‘contract’ to ‘status’ constitute
a ‘regression,’ a regression from the ‘liberal,’ ‘progressive’ environment of the nineteenth century to more primitive forms of social organization such as those described
by Maine in his work?”).
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practice. Feaver, in turn, interpreted “hitherto” as a true qualification
to Maine’s thesis in view of late nineteenth-century British politics.32
Maine refrained from extending his use of the word status to the rise of
democratic legislation. He was nevertheless acutely aware of increasing limits placed on contracts during his lifetime.
First introduced in Ancient Law and brought to a conclusion in
Popular Government, Maine observed a second phenomenon in the
transformation from “primitive” to progressive societies. This was the
movement from strict adherence to a “primitive” code to amending
and improving that code first by way of legal fictions, then by way of
equitable principles, and finally by way of legislation.33 How, if at all,
is this movement related to the movement from status to contract?34
Maine does not state explicitly how the two might fit together.
Diamond suggested that the movement from status to contract
depends on society’s ability to go beyond the strict confines of an
early “primitive” code.35 While it is tempting to equate a society’s
legislation-stage with its contract-stage, Maine was nevertheless
skeptical of the “socialist revival” and the “interventionist direction
of public affairs” in late nineteenth-century Britain.36 He perceived
popular legislation to be abridging rather than creating or safeguarding freedom of contract.37 In Popular Government, Maine pessimistically changed his notion of linear socio-cultural progress to a
“life-cycle” idea of evolution.38 Somewhat dramatically, he stated that
“[w]e are propelled by an irresistible force on a definite path towards
an unavoidable end—towards Democracy as towards Death.”39 In
32. See, e.g., Feaver, supra note 2, at 55 (arguing that Maine had inserted the
word “hitherto” in order to emphasize that the collectivist political tendencies prevalent in late nineteenth-century Britain did not contradict his thesis); Diamond, supra
note 31, at 23 (“Thus, the ‘characteristic element of caution’ in Maine’s famous dictum (‘hitherto’) which qualifies its character as a ‘law of progress’ becomes in Popular
Government, a clear prediction of moral decay and death.”).
33. Maine, supra note 1, at 15 (“A general proposition of some value may be
advanced with respect to the agencies by which Law is brought into harmony with
society. These instrumentalities seem to me to be three in number, Legal Fictions,
Equity, and Legislation. Their historical order is that in which I have placed them.
Sometimes two of them will be seen operating together, and there are legal systems
which have escaped the influence of one or other of them. But I know of no instance
in which the order of their appearance has been changed or inverted.”).
34. See generally Diamond, supra note 31.
35. Id. at 22 (“Now, we might be tempted to connect the arrival of a society at the
final stage of the ameliorating instrumentalities, legislation, with its arrival at the
final stage of progress, freedom of contract.”).
36. See generally Feaver, supra note 4, at 47–48.
37. E.g., Diamond, supra note 31, at 22–23 (arguing that in Popular Government,
Maine expresses a view of legislation as “restrict[ing] freedom of contract” and
“assign[ing] rights and duties on the basis of factors other than the free agreement
of man and man”); Woodard, supra note 20, at 226–27 (“Maine’s work provided an
entirely original justification for opposing all governmental activities interfering with
or curtailing the right to contract.”).
38. Woodard, supra note 20, at 235.
39. Cf. Henry Maine, Popular Government: Four Essays 170 (John Murray, 5th ed.
1909) (1885).
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view of this more general theory about the nature and direction of
socio-legal evolution, we may conclude that Maine himself anticipated that his theory about the movement of progressive societies might have to be substantively revised in light of contemporary
developments.
II. Critical Perspectives on Maine’s Thesis
More than half a century ago, Stone observed that “scarcely any
of Maine’s hypotheses have come unscathed through the ordeal of
later research.”40 This assessment has not lost any of its pertinence.
Maine’s thesis about the movement from status to contract is liable to methodological (A), ideological (B), and substantive (C) criticism. Nevertheless, his thesis has proven remarkably relevant over
time (D).
A. Methodological Criticism
Despite the praise that Maine initially received for Ancient
Law, critics have since identified his method as flawed.41 They have
focused in particular on the abstract nature of his thesis, his reliance
on materials from culturally and developmentally similar societies,
and his emphasis on communal rather than individual conceptions of
premodern identity.
Maine’s conceptual categories constitute “ideal types.” As such
they are subject to the general criticism this typological term has
generated.42 Maine himself realized the dangers of abstracting too
far from the particular, stating that generalizations “consist[] in
dropping out of sight a certain number of particular facts, and constructing a formula which will embrace the remainder.”43 To be sure,
no intellectual endeavor can entirely dispense with generalizations
and other organizing principles. Maine’s exclusion of particular facts,
however, has made it particularly easy for critics to argue in favor of
the limited applicability of his claim.
40. Cf. Julius Stone, The Province and Function of Law 461 (1946).
41. There is as of yet no authoritative or comprehensive account of Maine’s methodology. See David E.C. Yale, Further Thoughts on Maine’s Historical Jurisprudence,
in Victorian Achievement, supra note 4, at 238, 238 (“Though Maine does not explain
his methodology in any one place, there are remarks and recommendations scattered
through his writings.”).
42. For the notion of ideal types, see Max Weber, The Methodology of the Social
Sciences 90 (Edward A. Shils & Henry A. Finch eds. & trans., Free Press 1997) (1949)
(“An ideal type is formed by the one-sided accentuation of one or more points of view
and by the synthesis of a great many diffuse, discrete, more or less present and occasionally absent concrete individual phenomena, which are arranged according to
those one-sidedly emphasized viewpoints into a unified analytical construct . . . .”).
See also Mathieu Deflem, Sociology of Law 37–55 (2008). For a more specific problematization of Maine’s use of ideal types, see Manfred Rehbinder, Status—Kontrakt—
Rolle, in Berliner FS für Ernst E. Hirsch 141, 143–53 (1968).
43. Maine, supra note 39, at 107.
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Maine’s reliance on materials from culturally and developmentally similar societies has also exposed him to charges of ethnocentrism. Maine certainly impressed friends and colleagues alike with
his in-depth knowledge of Roman and Hindu law, classical literature, biblical texts, and the travel memoirs of his Victorian contemporaries. In his later works, he furthermore referenced Slavonic,
German(ic), and Irish legal materials. From today’s perspective,
however, Maine’s work speaks to the poor quality of non-Western
anthropological research available at the time. In addition, Maine
consciously prioritized some sources over others.44
Redfield, for one, criticized Maine’s equation of “ancient” and
“primitive” law.45 The earliest works that Maine referred to were the
Homeric poems written in the seventh or eighth century BCE. His
sources were furthermore limited to European, Judeo-Christian, and
Indian texts.46 In fact, Maine had very little to say about acephalous, nonliterate, and nonagricultural societies without a legal code
or some form of central governing authority.47 The subsequent discovery of the Code of Hammurabi and of Hittie, Assyrian, and
Eshnunna laws, all roughly dating from the second millennium
BCE, makes Maine’s reliance on Roman, Hindu, and biblical sources
look myopic.48 Maine’s assumption that codifications reached the
East much later than the West has also since been proven to be
erroneous.49
Scholars have criticized Maine on the basis that, for him, the relevant unit of study was the group rather than the individual.50 The
“discovery of the individual” is a process sometimes thought to have
begun no sooner than the Renaissance.51 In light of Victorian ideas
about history and progress, Maine’s methodological collectivism as
part of his examination of premodern societies in Ancient Law is
thus not entirely unreasonable. More recently, however, writers have
shown that there is little reason to think that premodern societies
consisted of selfless collectivists. Malinowski’s study of the Trobriand
44. See also Leopold Pospíšil, Anthropology of Law 150 (1971) (arguing that the
only reason why Maine’s evolutionary scheme is inapplicable in modern legal thought
is due to the “lack of comparative ethnographic data on non-European societies”).
45. Cf. Robert Redfield, Maine’s Ancient Law in the Light of Primitive Society, 3
W. Pol. Q. 574, 577 (1950).
46. Id.
47. Id.
48. See, e.g., Feaver, supra note 2, at 56.
49. See, e.g., Arthur S. Diamond, Primitive Law 39–154 (2d ed. 1935).
50. Henry Orenstein, The Ethnological Theories of Henry Sumner Maine, 70 Am.
Anthropology (n.s.) 264, 274 (1968) (“In much (not all) of social anthropology there is
a tendency to conceive the group as the unit of study, the community as primary, the
individual as somehow residual.”).
51. Cf. John Martin, Inventing Sincerity, Refashioning Prudence: The Discovery
of the Individual in Renaissance Europe, 102 Am. Hist. Rev. 1309 (1997). For an alternative account, see Colin Morris, The Discovery of the Individual 1050–1200 (1972)
(arguing that the period of 1050–1200 should be regarded as the beginning of the
recognition of “the self” in Western civilization).
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Islanders thus disproved any necessary link between primitivism
and communitarianism.52
B. Ideological Criticism
Maine was very much a man of his day. He wrote for a particular audience and with a particular purpose in mind. 53 Given
Victorian preoccupations with progress, culture, and history, Ancient
Law celebrated the dual English “foundational myth” of liberty and
individualism, as manifested in private property and freedom of
contract.54 Maine sought to “weave together the histories of the various branches of the Aryan tree . . . into a continuous institutional
history of the progressive development of private property, freedom
of contract, and individual right.”55 He did this with a clear mind
to reenforcing contemporary hierarchical ideas about race and culture. 56 Maine’s comparative-historical method was “imbued with
a form of patronizing Victorian evolutionism,”57 and “motivated by
a moderate conservative view of human nature, and . . . a vigorous
antiliberal assault.”58
52. Cf. B ronisław M alinowski , C rime and C ustom in S avage S ociety (1926).
While Malinowski argued against the, at the time, prevalent notion of “savages” as
being exclusively motivated by “a rationalistic conception of self-interest,” his complex anthropological study of the Trobriand Islanders emphasized the existence of
“enlightened self-interest” alongside motives of a “highly complex, social, and traditional nature.” Id. at 30. For further references, see Andrew Strathern & Pamela
J. Stewart, Ceremonial Exchange: Debates and Comparisons, in A H andbook of
Economic Anthropology (James G. Carrier ed., 2d ed. 2012).
53. Cf. Cocks, supra note 2, at 2 (emphasizing the importance “to resist the temptation to detach [Maine’s] jurisprudential arguments from his Victorian concerns”).
See also Jonathan Yovel, From Status to Contract: The Unhappy Case of Johann
Sebastian Bach, 27 Can. J.L. & Juris. 501, 503 (2014) (“Maine’s deterministic outlook
is entirely nineteenth century, expressing in hindsight the rise of the ideology of individualism, subjectivity and agency of classical liberalism, contemporary urbanization
processes and the rise of a public sphere that it served.”).
54. Feaver, supra note 2, at 53 (“Based primarily on the history of the Roman
law of persons, but intended to fit the circumstances of ‘progressive’ legal systems
in general, the dictum was thus received by Maine’s contemporaries as vindication
of the leading ideological currents of European society during a period of optimistic
industrial expansion. Here was a scholarly exposition of individualism manifesting
itself in history, in which progressive western man was moving ever closer towards
the apex of legal refinement, the freedom of individuals in principle to contract for
themselves, and thus to determine their own status.”). Conversely, Yovel, supra note
53, at 504, uses “The Unhappy Case of Johann Sebastian Bach” to illustrate that the
positive connotations Maine associated with contract were largely misguided. He
argues that “[Bach] would have proved a poor example of the sense of progress, personal empowerment and the pursuit of happiness suggested by Maine’s characterization of the contractual stage of history. . . . It almost seems as if, instead of allowing
Bach to assume governance of his professional life and thus free him from his former
status of servitude, the legal form of contract invented new ways of disadvantage and
disempowerment.”).
55. Cf. Karuna Mantena, Alibis of Empire: Henry Maine and the Ends of Liberal
Imperialism 81 (2010).
56. Id.
57. Cf. Macfarlane, supra note 16, at 111.
58. Cf. Orenstein, supra note 50, at 271.
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As laid down above, Maine took a gradually more active role in
criticizing the direction that Victorian politics was taking. He became
increasingly skeptical about democratic legislation as a tool for social
regulation and reform. With his emphasis on contract as a relatively
recent civilizational achievement, Maine positioned himself directly
against the contractarian theories of Locke, Hobbes, and Rousseau,
as well as against the utilitarian theories of Austin and Bentham.59
Maine considered these theories to be unhistorical because they presupposed that the state of nature had been overcome either through
social contract or the instatement of a command-issuing sovereign.
He was particularly concerned that Locke, Hobbes, Rousseau, Austin,
and Bentham all ignored custom as a tool for and expression of social
change.
C. Substantive Criticism
Much of the substantive criticism leveled against Maine’s thesis
hinges on historical and anthropological evidence that was unavailable during his lifetime. As such it is not entirely fair. Atiyah emphasized that Maine was writing at a time when it seemed that modern
society was indeed moving in a linear fashion from status to contract.60 Similarly, Cohn suggested that Maine’s thesis could easily be
documented based on Indian materials.61
A fair and balanced analysis of Maine’s thesis nevertheless
requires critical engagement with countervailing historical and
anthropological evidence. In addition to the substantive implications
of Maine’s particular methodological and ideological commitments, it
is especially his notion of the premodern family that leaves Ancient
Law vulnerable to criticism. Maine had based his idea of the patriarchal family on Roman legal sources. While the extent to which the
concept of patria potestas holds any historical credence has been
called into question,62 there was even then little reason to think that
59. See, e.g., Morgan, supra note 5, at vii (“[Maine’s work] was a new departure,
inasmuch as the school of jurists, represented by Bentham and Austin, and of political
philosophers, headed by Hobbes, Locke, and their nineteenth-century disciples, had
approached the study of law and political society almost entirely from an unhistoric
point of view and had substituted dogmatism for historical investigation.”). See also
Redfield, supra note 45, at 575 (“Thus Maine was quite as opposed to Hobbes, who
assumed a primordial state of nature in which men were brutish and miserable, as he
was to Rousseau, who assumed a state of nature in which man was happy and free,
because each assumed something which he had no way to prove. And when Maine
came to the question as to whether Locke or Filmer was right when the one declared
that men were originally organized in patriarchal families while the other denied that
men were so organized, Maine refused to accept the views of either because the conclusions of both rested on mere conjecture, and not historical research.”).
60. Patrick S. Atiyah, Promises, Morals and Law 93 (1981) (“It must be remembered that Maine was writing at a time when it seemed to many that ‘advanced’ societies moved in a linear progression.”).
61. Cohn, supra note 11, at 628.
62. See, e.g., Richard P. Saller, Patriarchy, Property and Death in the Roman
Family 102–32 (1994).
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the original sociopolitical organization of civilized society was that of
the patriarchal family.63
In 1861, the same year Ancient Law was published, the Swiss
legal anthropologist Johann Bachofen published Das Mutterrecht
(“Mother Law” or “Mother Right”). Analyzing the religious and juridical character of matriarchy in the ancient world, Bachofen arrived
at the conclusion that many premodern societies had been based on
matrilineal rather than patrilineal descent, with mothers and other
women of the household occupying a particular place of authority and respect. Similarly, Redfield argued that an emphasis on one
line of descent rather than the other was characteristic of relatively
advanced societies only. He forcefully concluded that “there is no reason to suppose that the Eskimo ever lived in patriarchal societies.”64
D. Conclusion
Has Maine’s thesis proven successful due to its rhetorical appeal
rather than its material content?65 Maine’s methodological communitarianism, his undifferentiated equation of “primitive” and ancient
law, and his substantively questionable assumptions about the premodern family support Stone’s conclusion that scarcely any of his
hypotheses have come out unscathed through “the ordeal of later
research.”66 Maine himself, however, may have known about the limits of his thesis. His analyses in later works did not always align perfectly with his famous aphorism. As part of his examination of feudal
land tenure, he was forced to conclude that contract law had played a
rather important role. In the words of Pollock and Maitland, “the law
of contract [had] threatened to swallow up all public law.”67
Despite the inapplicability of Maine’s account to many particular instances of socio-legal evolution, Redfield concluded in 1950 that
“on the whole, the broad history of humanity, the narrower history
63. See, e.g., Redfield, supra note 45, at 575 (arguing that Maine, in this context,
drew “the wrong conclusions” from the materials available to him).
64. Id. at 578.
65. For arguments to this effect, see Stein, supra note 15, at 97 (“The force and
style of this passage explain in part why Ancient Law made such a tremendous
impact on publication.”); Woodrow Wilson, A Lawyer with a Style, 82 Atl. Monthly
363, 364 (Sept. 1898), quoted in Feaver, supra note 4, at 35 (suggesting that Maine’s
scholarly achievements would survive “not . . . by reason of the abundance and validity of his thought, but by reason of his form and art”).
66. Stone, supra note 40, at 461.
67. 2 Frederick Pollock & Frederic William Maitland, The History of English
Law 233 (London, Cambridge University Press 1898). See also Nathan Isaacs, The
Standardization of Contracts, 27 Yale L.J. 34, 40 (1917) (“And this is not the first
time that the seismograph of history has made such a record . . . . That medieval
hardening of relations known as feudalism was also, in its beginnings, a progress
from contract to status. And those whose philosophy of history is a belief in the
gradual development of liberty through the principle of contract have been forced to
regard feudalism as a pause in human progress, an armistice in the war between two
opposite ideas, status and contract—at best, a compromise, an exceptional, disturbing
element in their whole scheme.”).
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of Europe, and the transformation of tribal society under the influence of contact with other societies fulfill [Maine’s] generalization.”68
Maine’s argument about the movement from status to contract is
today a standard insight of social and anthropological theory.69 It is
also referred to in juristic texts on private law theory and history.70
We might thus consider it a testament to the truth value of Maine’s
claim that it has come to be accepted, even in the face of well-reasoned criticism.
I ultimately argue that the application of Maine’s aphorism to
modern private law is misguided. Maine can nevertheless be credited
with concretizing the idea that interpersonal rights and obligations
are more often than not the result of naturally occurring societal
processes rather than private-autonomous agreements between freestanding individuals.
III. Maine’s Thesis and Modern Private Law
I have concluded the previous Part with the contention that
Maine’s thesis about the movement from status to contract has, for
good reason, proven extraordinarily relevant over time. I now argue
that the true litmus test for his substantive claim is whether it
has anything interesting to say about the current state or future of
modern private law. Problematically, scholars have assigned different meanings to Maine’s thesis. The term “status” in particular has
been subject to various interpretations, many of which contradict one
another. “Status” today is used in a much broader sense than Maine
had originally intended. In particular, it has been associated with the
distinct phenomena of contract standardization (A) and relational
contracting (B). This has led commentators to suggest that modern
private law is witnessing a reverse movement from contract to status. In the following, I argue that this revisionist account is both historically inaccurate and conceptually simplistic. As such it begs the
question: why do modern private law scholars continue to engage in
Mainean “status”-speak to characterize both contract standardization and relational contracting (C)?
A. Contract Standardization
The rise of national, transnational, and international regulation
has been the single most important development in the 150 years
since Ancient Law was published. Industrialization and globalization contributed to the emergence of cross-border consumer markets
68. Cf. Redfield, supra note 45, at 588–89.
69. See, e.g., Deflem, supra note 42, at 22–24; Law and Anthropology 20–23 (Sally
Falk Moore ed., 2005). See also the articles cited infra note 124.
70. See, e.g., Morris R. Cohen & Felix S. Cohen, Readings in Jurisprudence and
Legal Philosophy 124–25 (1951).
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toward the end of the nineteenth century.71 Based on economyof-scale considerations, businesses started offering products and
services under preformulated standard term contracts on a take-itor-leave-it basis. Even small businesses today advertise their goods
and services under so-called boilerplate terms, which are increasingly supplied by public and private actors.72 Especially where sellers hold (quasi-)monopolistic positions in a particular market,
consumers have little to no possibility of negotiating the terms and
conditions of the bargain. Similarly, they have little to no possibility
of private-autonomously determining the rights and obligations flowing from their contracts.
The take-it-or-leave-it position created by the increased use of
standard form contracts was eventually found to be problematic from
the perspective of modern constitutional governance.73 Informational
asymmetries and inequality of bargaining power were identified as
potential sources of unconscionable conduct on the part of businesses
and other commercial actors. They challenged the functioning and
legitimacy of the, up to that point, relatively liberal market order. In
order to avoid market failure and to give effect to the paternalistic
mandates of national constitutions, courts and legislatures developed
restrictions on standardized contract terms. By the latter half of the
twentieth century, many states had passed substantial consumer
protection legislation.
The most common regulatory tool employed by this kind of legislation was the creation of a new legal category, “the consumer,”
to which a host of mandatory rules attached.74 Many legal systems
also formulated general unconscionability standards against which
71. See foundationally Friedrich Kessler, Contracts of Adhesion—Some Thoughts
About Freedom of Contract, 43 C olum . L. R ev . 629 (1943). For developments in
English contact law, see Patrick S. Atiyah, The Rise and Fall of Freedom of Contract
(1979). For an overview of developments in German private law, see Franz Wieacker,
Privatrechtsgeschichte der Neuzeit § 28 (2d ed. 1967).
72. See Gregor Bachmann, Private Ordnung (2005) for an overview over the phenomenon of private (self-) regulation and the sources of its legitimacy. For a discussion of some of the problems and challenges involved in private regulation beyond
the state, see Dan Wielsch, Global Law’s Toolbox: Private Regulation by Standards,
60 Am. J. Comp. L. 1075 (2012).
73. For a recent account of the increasing prevalence of standard form contracts and some of the problems associated with this development, see, e.g.,
Margaret Jane Radin, Boilerplate: The Fine Print, Vanishing Rights, and the Rule
of Law (2013).
74. See, e.g., section 13 of the German Civil Code (Bürgerliches Gesetzbuch
[BGB]), which defines a consumer as “every natural person who enters into a legal
transaction for a purpose that is outside his trade, business or profession” (translated
by author). See also Article 2(f) of the now abandoned Draft Regulation 2011/0284
(Proposal for a Regulation of the European Parliament and of the Council on a
Common European Sales Law), COM (2011) 635 final, Oct. 11, 2011 [hereinafter
CESL], which defined consumers in almost identical terms. See also section 1–201(b)
(11) of the U.S. Uniform Commercial Code (U.C.C., Am. Law Inst. & Unif. Law Comm’n
1977), which defines a consumer as “an individual who enters into a transaction primarily for personal, family, or household purposes.”
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boilerplate contracts and provisions were to be judged.75 In addition
to businesses’ take-it-or-leave-it approach, this consumer category
constitutes a second way in which modern individuals are deprived
of their ability to private-autonomously determine the rights and
obligations of contracts that bind them.
“Status,” in the context of standardization, denotes the categorization of people by reference to some abstract criterion and the subsequent imposition of rights and obligations corresponding to that
criterion. For the purpose of consumer and employment law, people
are not viewed as multifaceted individuals with distinct and variable interests. They are reduced to their condition as consumers or
employees. It is presumed that all consumers and employees suffer
from the same level of informational asymmetry and inferiority of
bargaining power. It is also presumed that they are in need and want
of protection. It is in this context that authors have contemplated a
reverse movement from contract to status.76
75. See, e.g., § 307 BGB:
(1) Provisions in standard business terms are ineffective if, contrary to the
requirement of good faith, they unreasonably disadvantage the other
party to the contract with the user. An unreasonable disadvantage may
also arise from the provision not being clear and comprehensible.
(2) An unreasonable disadvantage is, in case of doubt, to be assumed to exist
if a provision
1. is not compatible with essential principles of the statutory provision
from which it deviates, or
2. limits essential rights or duties inherent in the nature of the contract
to such an extent that attainment of the purpose of the contract is
jeopardised . . . .
Similarly, Article 79 of the CESL (“A contract term which is supplied by one party and
which is unfair under Sections 2 and 3 of this Chapter is not binding on the other
party.”) and Articles 82–85 lay down the circumstances in which a contract between
a trader and a consumer is (presumed to be) unfair. While section 2–302 of the
U.C.C. entitles judges to refuse enforcement of an “unconscionable” contract or clause,
American consumers have traditionally been protected through mandatory disclosure
legislation. For a recent discussion of this trend, see, e.g., Anne Fleming, The Rise and
Fall of Unconscionability as the “Law of the Poor,” 102 Geo. L.J. 1383 (2014).
76. See, e.g., Kessler, supra note 71, at 641 (“Thus the return back from contract
to status which we experience today was greatly facilitated by the fact that the belief
in freedom of contract has remained one of the firmest axioms in the whole fabric of
the social philosophy of our culture.”); Harry W. Jones, The Jurisprudence of Contracts,
in Jus et Societas 175 (Philip C. Jessup et al. eds., 1979) (“Indeed, the development
towards collective and standardized bargains has gone so far in our day that many
analysts of our society see Maine’s movement as cyclical, that is, a movement, even
and particularly in the progressive societies, from status to contract and now back to
status.”); Alexander Bruns, Die Vertragsfreiheit und ihre Grenzen in Europa und den
USA—Movement from Contract to Status?, 62 JuristenZeitung [JZ] 385, 386 (2007)
(“Eine beeindruckende Vielzahl privatrechtlicher Richtlinien bestimmen über das
europarechtliche Gebot des effet utile und die Anordnung zwingenden Rechts zusehends die Wirklichkeit privatautonomer Vertragsgestaltung, und es drängt sich die—
vielleicht etwas provokative—Frage auf: Gibt es gegenwärtig ein Movement from
Contract to Status?”). For a critical view of the alleged “removement from contract to
status,” see Jörg Benedict, Kodifikation der “Einzelfallgerechtigkeit?”—oder von Geist
und (Re-)Form der Zeit, 89 Archiv für Rechts- und Sozialphilosophie [ARSP] 216 (2003)
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Standardization and status in the Mainean sense are similar in
that they both involve the external, heteronomous imposition of rights
and obligations for reasons that inhere in a particular legal subject.
“Status” in the context of standardization, however, goes substantively
beyond what Maine meant by the term. Modern “status” includes both
“ascribed” and “achieved” attributes.77 Ascribed status is “assigned to
individuals without reference to their innate differences or abilities.”78
Achieved status, conversely, requires “special qualities” and is “open to
individual achievement.”79 The difference is the idea of role differentiation as “the dynamic aspect of status.”80 While the restrictions imposed
on legally incompetent individuals are based on ascribed status, mandatory provisions applicable to consumer and employment contracts
are based on achieved status. People are not born as consumers or
employers but only become so as a consequence of their life choices.
They are not consumers or employers all the time, but only within the
limited social sphere of the market or the workplace.
“Status” in the sense of contract standardization differs in a
further fundamental aspect from the way Maine employed the
term. Status, in premodern society, constituted an immutable condition. Whether a person was born free or a slave, into a more or less
respected family, or as the eldest son or the youngest daughter, their
condition was thought to be fixed for life.81 Not so for contract standardization. Consumers do always have the option to “leave it,” i.e.,
to forego the transaction on the particular terms offered. Similarly,
people are not obligated to enter into contracts of employment—
socioeconomic pressures notwithstanding. Finally, most systems
allow for a fair amount of private-autonomous contracting if the provisions in question are the consequence of individual consumer–business negotiations.82 People in modern society are significantly more
as well as Rehbinder, supra note 42. See also Yovel, supra note 53, who, in his fascinating account of Johann Sebastian Bach’s professional journey from status to contract, stays true to the original meaning of Maine’s conceptual categories. Consider
also Johannes Köndgen’s interesting argument about the gradual convergence of contract and tort law into the law of civil obligations, which he describes as a movement
“from status to contract to quasi-contract.” Cf. Johannes Köndgen, Selbstbindung ohne
Vertrag 418–20 (1984) (translated by author).
77. Robert Childres & Stephen J. Spitz, Status in the Law of Contract, 47 N.Y.U.
L. Rev. 1, 2 n.5 (1972). For the distinction between ascribed and achieved status,
see Ralph Linton, The Study of Man 115–31 (1936). See also Irving S. Foladare, A
Clarification of “Ascribed Status” and “Achieved Status,” 10 Soc. Q. 53 (1969).
78. Cf. Linton, supra note 77, at 115.
79. Id. at 115, 128.
80. Cf. Talcott Parsons, Essays in Sociological Theory, Pure and Applied 43 (1949).
81. See also Yovel, supra note 53, at 503 (“For whereas feudal status is comprehensive
in its reach and effects, and is significantly determined as a matter of luck—being granted
or thrust on a person—contract expresses categories of voluntarism, choice, and action.”).
82. See, e.g., § 305(1), (2) BGB (“Contract terms do not become standard business
terms to the extent that they have been negotiated in detail between the parties.”).
See also Articles 82–85 of the now obsolete Common European Sales Law (CESL),
which only applied to terms that had not been individually negotiated.
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powerful than people in premodern society with regard to creating
rights and obligations that pertain to them.
B. Relational Contract Theory
Another area in which the idea of a reverse movement from contract to status has gained momentum is relational contract theory.83
Relational contract theory is not so much a new phenomenon as a new
way of thinking about agreements between people. In the latter half
of the twentieth century, Gilmore argued that contract law was “dead”
because it was impossible to construe a comprehensive theory of contracts that would encompass all different contract types.84 In reaction to
this, Macneil argued in favor of “the many futures of contract.”85 He suggested that all contract types had four primary roots in common, one of
which was their embeddedness in a particular “social matrix.”86 Macneil
observed that contractual exchanges invariably presupposed communication between people. He also noted that contracts often formalized
only part of a considerably more complex social relationship between
them. What Macneil meant by social matrix was the idea that contracts
necessarily existed against a background of established social meanings.
Macneil argued that all transactions could be located on a spectrum going from discrete or “transactional” to “relational.”87 Discrete
transactions correspond to what has been termed “simplex” relationships, that is, relationships that amount to little more than
the simultaneous exchange of goods between two parties that will
have nothing to do with each other in the future. 88 Macneil gave
83. On relational contract theory, see generally Ian R. Macneil, Whither Contracts,
21 J. Legal Educ. 403 (1969); Ian R. Macneil, The Many Futures of Contracts, 47 S.
Cal. L. Rev. 691 (1974) [hereinafter Macneil, The Many Futures of Contracts]; Ian
R. Macneil, Contracts: Adjustment of Long-Term Economic Relations Under Classical,
Neoclassical, and Relational Contract Law, 72 Nw. U. L. Rev. 854 (1978) [hereinafter
Macneil, Adjustment of Long-Term Economic Relations]; The Relational Theory of
Contract: Selected Works of Ian Macneil (Ian R. Macneil ed., 2001). See also the collection of essays on relational contract theory in Perspectives on Contract Law 481–
519 (Randy E. Barnett ed., 4th ed. 2009). For a critical appraisal of relational contract
theory, see, e.g., Randy E. Barnett, Conflicting Visions: A Critique of Ian Macneil’s
Relational Theory of Contract, 78 Va. L. Rev. 1175 (1992).
84. See generally Grant Gilmore, The Death of Contract (1974). For clarification
and criticism of Gilmore’s thesis about the “death of contract,” see especially Robert
W. Gordon, Book Review: The Death of Contract, 1974 Wis. L. Rev. 1216 (1974). For a
more recent critical appraisal of Grant’s thesis, see also Robert E. Scott, The Death of
Contract Law, 54 U. Toronto. L.J. 369 (2004).
85. Macneil, The Many Futures of Contracts, supra note 83, at 735–804.
86. Id. at 710–12.
87. Id. at 815.
88. See generally Robert L. Kidder, Connecting Law and Society 70–72 (1983)
(describing the respective features of simplex and multiplex relationships). Robert
Ellickson, Order Without Law: How Neighbors Settle Disputes (1991) (applying the
distinction between simplex and multiplex relationships to the settlement of disputes
between residents in rural Shasta County, California). According to Ellickson, the
multiplex/simplex dichotomy was introduced by Max Gluckman. Max Gluckman, The
Judicial Process Among the Barotse of Northern Rhodesia 19 (1955).
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the example of a gasoline purchase “at a station on the New Jersey
Turnpike by someone rarely travelling the road.”89 Relational transactions, in turn, correspond to what has been termed “multiplex”
relationships, that is, relationships that are continuous and involve a
complex web of mutual rights and obligations even after the primary
purpose of the contract—usually the exchange of goods or services—
has been achieved.90 Modern commercial contracts such as franchise,
long-term supply, and licensing agreements fall into this second category of transaction.
Macneil’s relational contract theory was based on the sociological
work of his colleague Stewart Macaulay.91 In his behavioral analysis
of a group of Wisconsin businessmen, Macaulay had discovered ten
years earlier that commercial parties frequently preferred noncontractual arrangements for the purpose of planning, structuring, and
enforcing their exchange relationships. He found that parties would
settle disputes through informal procedures even if formal provisions
addressing the problem in question had been included in the contract. Furthermore, Macaulay established that the personal relationship between the parties, the respective strength of their bargaining
power, and their respective place in the relevant socioeconomic hierarchy were pertinent factors for determining the exact configuration
of their mutual rights and obligations.
Reduced to its essence, relational contract theory is similar to
Maine’s concept of status in two ways. First, relational contract theory draws attention to the extent to which the rights and obligations
of individuals in contractual relationships are determined by factors outside the contract.92 Second, relational contract theory draws
attention to the origin of those factors in the social and hierarchical
position of the parties involved. In Maine’s theory, people’s prospects
of trade and marriage as well as the entitlement to determine what
happened to their property after death were exhaustively determined by the place and position a particular individual had been
89. Cf. Macneil, Adjustment of Long-Term Economic Relations, supra note 83, at 857.
90. Kidder, supra note 88, at 70–72; Ellickson, supra note 88, at 55.
91. See in particular Stewart Macaulay, Non-Contractual Relations in Business:
A Preliminary Study, 28 Am. Soc. Rev. 55 (1963). For a recent appraisal of Macaulay’s
work, see especially Revisiting the Contracts Scholarship of Stewart Macaulay: On
the Empirical and the Lyrical (Jean Braucher et al. eds., 2013). For a recent empirical
testing of Macaulay’s findings, see also Gillian Hadfield & Iva Bozovic, Scaffolding:
Using Formal Contracts to Build Informal Relations in Support of Innovation (U.S.C.
Law and Economics Working Paper Series, No. 144, 2012) as well as even more
recently, Lisa E. Bernstein, Beyond Relational Contracts: Social Capital and Network
Governance in Procurement Contracts (Coase-Sandor Working Paper Series in Law
and Economics, No. 742, 2016).
92. In this context, see Émile Durkheim’s argument about the extra-contractual
foundations of contract in Émile Durkheim, The Division of Labor in Society 211, 215
(George Simpson trans., Free Press 1964) (1893) (“[E]verything in the contract is not
contractual . . . . [A] contract is not sufficient unto itself, but is possible only thanks to
a regulation of the contract which is originally social.”).
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born into. In this context, too, we need to bear in mind the difference
between ascribed status and achieved status. There are also other
differences between what Macneil and Macaulay described and the
point Maine was trying to make.
Maine based his theory of status and the family on Roman law
as part of which contracts, in the modern sense of the word, had
played only a minor role.93 He thus presupposed a situation in which
there were very few contracts, leaving the determination of individuals’ rights and obligations entirely up to status. Conversely, in the
situations analyzed by Macneil and Macaulay, there were contractual frameworks in place around which relational and “status”-like
elements could develop. The most interesting part of relational contract theory is that it draws attention to the possibility of interaction
between contractual and “status”-like elements. It is this interaction,
I argue, that is characteristic of modern society due to its dependence
on a finely calibrated balance between perfect contracting and second-best solutions.
C. From Status to Contract and Back Again?
We can conclude that the argument that modern private law is
witnessing a reverse movement “from Contract to Status” is both
historically inaccurate and conceptually simplistic. It is historically
inaccurate because it presupposes an unsophisticated and decontextualized notion of status. It is conceptually simplistic because it pays
no regard to the complex interplay of “status” and contract in modern
private law. Why, in the face of clear countervailing evidence, would
modern private law scholars nevertheless continue to engage in
Mainean “status”-speak with regard to both contract standardization
and relational contracting? This is the question to which the remainder of this Article is dedicated.
Perhaps the phenomena Maine and modern private law scholars
are describing by reference to status/“status” are sufficiently similar
to merit terminological continuity. My discussion up until this point
certainly allows for the proposition that there is at least one legitimate parallel between status as part of Maine’s theory and “status”
as part of modern private law discourse: modern private law scholars mirror Maine’s “from Status to Contract” thesis to the extent that
they seek to draw attention to the argument that personal rights and
obligations are frequently the result of naturally occurring societal
processes that the law normatively reflects; conversely, that said
93. Cf. Richard H. Graveson, The Movement from Status to Contract, 4 Mod.
L. Rev. 261, 261 (1941) (“[In Roman law] promises were enforced mainly in the form
of pacts on the basis of bona fides, not of the autonomy of the will.”). Graveson’s view
is not uncontroversial. For an overview of the Roman law of contract, see generally
Alan Watson, The Evolution of Law: The Roman System of Contracts, 2 Law & Hist.
Rev. 1 (1984).
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rights and obligations are not necessarily the result of private-autonomous agreements between free-standing individuals.
At the same time, this prima facie parallel seems insufficient to
justify transplantation of Maine’s original categories into modern
private law given the conceptual difficulties that this process entails.
Neither contract standardization nor relational contracting can
adequately be reconstructed as modern instances of status. What is
more, construing them as such obscures important characteristics of
these phenomena. For this reason, we need a more convincing explanation for why modern private law scholars continue to engage in
Mainean “status”-speak in these contexts. To this end, I suggest, it is
necessary to disregard the conceptual deficits “status”-speak entails
in order to look to the message behind it.
By way of a second tentative explanation for the persistence of
Mainean “status”-speak in modern times, I would now argue that it
may not only be the rhetorical clout of Maine’s original categories,
but—additionally—the linear, directional theory of socio-legal evolution underlying them. What modern private lawyers are really claiming by reference to their revisionist from-contract-to-status thesis
may thus be that modern society is witnessing a 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 and the state. In order to assess the veracity of
this claim, I now examine a variety of conceptual forces struggling
for dominance in modern private law discourse.
IV. Transcending the “Status”/Contract Dichotomy
Based on comparative, historical, and theoretical insights,
I tease out two tensions that characterize modern private law: the
tension between freedom of contract and constitutional paternalism,
and the tension between perfect contracting solutions and secondbest alternatives (A). I then 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 these tensions. (B). I go on to argue that modern private
law’s dependence on both “status”-like and contractual elements
delegitimizes scholars’ invocation of Mainean “status”-speak due to
the linearity, one-directionality, and conceptual inertia it implies.
In order to clarify any postulated nonlinearity, multi-directionality, and interaction between “status”-like and contractual elements,
I then introduce, explain, and to some extent defend two hybrid
types—contract-status and status-contracts—that more adequately
capture current tendencies in modern private law. Concluding with
the observation that inconsistencies remain even if contract standardization and relational contracting are reconceptualized in terms
of hybrid notions like contract-status and status-contract, I set up
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my subsequent discussion of the need to update modern private law’s
terminological toolbox (C).
A. Two Tensions in Modern Private Law
Modern states, on the one hand, are torn between regulating
and deregulating the private law (1). Conversely, parties are torn
between prohibitively expensive “perfect,” first-best contracting solutions and affordable, second-best contracting solutions (2).
1. Freedom of Contract Versus Constitutionally Mandated
Paternalism
Freedom of contract in the 150 years since Maine’s death has
been curtailed through public policy-based interventions, particularly in the form of mandatory rules. The rise of democratic constitutionalism and fundamental rights has brought about what German
scholars frequently refer to as “the triumph of public law.” 94 At the
same time, economists have shown that markets need to exhibit at
least a minimum degree of freedom in order to produce efficient outcomes and enhance general social welfare. Modern states and transnational regulatory agencies alike are torn between regulating and
deregulating the private law.
2. Perfect Contracting Solutions Versus Second-Best
Alternatives
The second tension characteristic of modern private law is that
between perfect contracting solutions and second-best alternatives.
Ulrich Beck and Anthony Giddens have shown that modern society
seeks to transform insecurity about future contingencies into calculable and transferable risks.95 Individuals entering into contractual
relations with one another would therefore always prefer to provide
for all eventualities.
Contracts, however, are necessarily incomplete. Transaction
costs include legal fees, negotiation costs, and costs covering research
94. Martin Sellmann, Entwicklung und Problematik der öffentlich-rechtlichen
Nachbarklage im Baurecht, 1963 D eutsches V erwaltungsblatt [DVB l ] 273, 273
(observing a “Siegeszug des öffentlichen Rechts”) (translated by author). For an
example of the prevalent use of this formulation in German private law scholarship,
see, e.g., Dieter Medicus, Allgemeiner Teil des BGB 7 (10th ed. 2010).
95. See, e.g., U lrich B eck , R isk S ociety : T owards a N ew M odernity 21 (1992)
(defining risk society as “a systematic way of dealing with hazards and insecurities induced and introduced by modernisation itself ”); Anthony Giddens, Risk and
Responsibility, 62 Mod. L. Rev. 1, 3 (1999) (defining risk society as “a society increasingly preoccupied with the future (and also with safety), which generates the notion
of risk”). For a recent reappraisal of the concept of risk society, see The Risk Society
Revisited: Social Theory and Risk Governance (Eugene Rosa et al. eds., 2013). For
a recent discussion of the relationship between modernity and private law, see
Marietta Auer, Der privatrechtliche Diskurs der Moderne (2014).
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into the probability and effects of a particular contingency. In case a
dispute goes to court, the costs of making contingency-relevant information verifiable to judges need to be factored into the equation as
well. The cost of “perfect” contracting solutions frequently transcends
parties’ means and their valuation of having every contingency
accounted for.96 Contracts are also incomplete because of bounded
rationality. Contracting parties simply do not have the necessary cognitive and linguistic capacities to consider and express every single
eventuality. There may also be strategic reasons for parties to leave
contracts incomplete.
What follows from this is that parties frequently forego perfect
contracting solutions in favor of affordable alternatives. The relational or “status”-based determination of parties’ rights and obligations, I argue below, constitutes one such affordable alternative.
B. The Mediating Role of “Status”
I have concluded that tensions between justice and efficiency are fundamental to modern private law. How, if at all, can
these tensions be resolved or mitigated? This is where “status,”
understood as an aspect of both standardization and relational
contracting, comes in. “Status” in the context of contract standardization addresses tensions between freedom of contract and
constitutional paternalism (1). “Status” as a form of relational
contracting addresses tensions between perfect agreements and
second-best solutions (2). In this context, it is crucial to bear in
mind that the “status”-like elements on which I base my argument
invariably operate within a complex framework of independently
existing contractual structures.
1. “Status” and Contract Standardization
We can translate the tension between freedom of contract and
paternalism into the question of how the “right kind of party” can be
matched with the “right type of contract.” “Status”-based standardization creates a catchall category based on the “consumerishness”
of a particular party. A party’s consumerishness, in turn, is based on
generalized assumptions about their cognitive and economic capacities. This often leads to situations in which individuals are forced
to pay extra for protective contract terms they do not need or want.
Conversely, special protection is unavailable to parties exhibiting
some of the defects on which the consumer category is based (e.g.,
unsophisticated commercial parties).
96. See generally Ian Ayres & Robert Gertner, Filling Gaps in Incomplete
Contracts: An Economic Theory of Default Rules, 99 Y ale L.J. 97 (1989); Alan
Schwartz & Robert E. Scott, Contract Theory and the Limits of Contract Law, 114
Yale L.J. 541 (2003); Aditi Bagchi, The Political Economy of Regulating Contract, 62
Am. J. Comp. L. 687 (2014).
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Are there alternatives to “status”-based approaches to consumer protection? Discussions of the recently abandoned Common
European Sales Law (CESL) speak to the distinct lack of creative
solutions to the problem of ensuring that the right kind of party is
matched with the right type of contract.97 Cafaggi suggested that the
nature of the transaction should dictate the particular configuration
of parties’ rights and obligations.98 On this account, special legal protections would have been imposed depending on whether the transaction in question was standardized or customized. His suggestion
has not caught on. Even in the academic realm, no alternative proposal has gained even just nominal support. “Status,” as an aggregation of consumer preferences, plays an indispensable role in modern
private law.
2. “Status” and Relational Contracting
“Status” as a form of relational contracting is furthermore indispensable because it mediates tensions between perfect contracting
solutions and second-best alternatives. Where perfect contracting
solutions are unattainable, parties seek alternative mechanisms for
ensuring that contractual relations lead to mutually beneficial outcomes. One of these alternative mechanisms is the maintenance or
creation of a “status”-based relationship.
Detailed contracts are but “functional alternatives” to trust.99
Where parties to a contract entertain preexisting social relations
with each other, they may be able to draw on particular aspects of
these relations for the purpose of investing their agreements with
meaning and force. Trust reduces uncertainty and complexity.100 It
removes incentives to check up on people, lowering monitoring costs.
It acts as a basis on which parties can create and sustain meaningful
terms of exchange whenever unforeseen circumstances arise. This is
the case especially where parties share some cultural, religious, or
other affective ties.
Greif ’s analysis of contract enforceability in medieval trade
stands for the proposition that substantially incomplete contracts
can be segmentally completed based on solutions that flow from
97. See generally 50 Common Mkt. L. Rev. (Special Issue) 1 (2013) (dedicated to a
discussion of the advantages, disadvantages, and alternatives to the present state of
European contract law).
98. Fabrizio Cafaggi, From a Status to a Transaction-Based Approach?
Institutional Design in European Contract Law, 50 Common Mkt. L. Rev. (Special
Issue) 311, 313 (2013) (arguing that “[u]sing the status of [a] party as a justification
for legal intervention constitutes a very poor proxy” and that instead, whether or
not a special regime is called for should be decided based on the presence/absence
of informational asymmetries, and the parties’ respective cognitive abilities and
bargaining power).
99. Cf. Piotr Sztompka, Trust: A Sociological Theory 117–18 (2000).
100. For further references, see generally Niklas Luhmann, Trust and Power (1979);
Bernard Barber, The Logic and Limits of Trust (1983); Id.
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particular socioeconomic hierarchies.101 While Greif has been criticized for misconstruing the empirical evidence available, the general idea underlying his analysis has not been discredited.102 Shields
recently described a similar phenomenon in relation to the diamond
trade among orthodox Jews in New York.103
Even where agreements are initially governed exclusively by
contract, parties have an incentive to transform the relationship
between them into one governed by trust in order to draw on informal bargaining and enforcement procedures. Posner showed that
where transaction costs in “primitive” societies are high, parties
respond by transforming an originally arm’s-length contract relationship into an intimate “status” relationship (“barter friendship”).104
Examples of this are plentiful. Posner himself refers to the pairing of
buyers and sellers observed by Geertz’s analysis of Moroccan bazaar
economies.105
Importantly, the conscious transformation of an arm’s-length
relationship into what Posner called a “barter friendship” is not
exclusively a feature of “primitive” societies. It is exactly the kind
of behavior Macaulay observed, leading Macneil, some time later,
to formulate his thesis about the relational nature of contracts.
Given prohibitively expensive, perfect contracting solutions and the
101. See Avner Greif, Contract Enforceability and Economic Institutions in Early
Trade: The Maghribi Traders’ Coalition, 83 Am. Econ. Rev. 525 (1993) (relying on
historical records and applying game-theoretical models to argue that multilateral reputation mechanisms mitigated agency problems among eleventh-century
Maghribi traders). See also Avner Greif, Informal Contract Enforcement Institutions:
Lessons from Late Medieval Trade, in 2 The New Palgrave Dictionary of Economics
and the Law 287 (Peter Newman ed., 2002); Thomas Palay, Informal Contracts and
Regulatory Constraints, in 2 The New Palgrave Dictionary of Economics and the Law,
supra, at 295.
102. Jeremy Edwards & Sheilagh Ogilvie, Contract Enforcement, Institutions and
Social Capital: The Maghribi Traders Reappraised, 65 Econ. Hist. Rev. 421 (2012)
(arguing that the relations between eleventh-century Maghribi merchants and their
agents were not predominantly reputation based but law based). But see Avner Greif,
The Maghiribi Traders: A Reappraisal, 65 Econ. Hist. Rev. 445 (2012) (adducing further quantitative and documentary evidence to refute Edwards’s and Ogilvie’s criticism of his original analysis).
103. See Renée Rose Shields, Diamond Stories: Enduring Change on 47th Street
(2002) (offering a fascinating account of how the nature of contracting and dispute
resolution may be substantially different in relatively close-knit, socially homogeneous groups). According to Marelyn Schneider, Book Review, 91 Am. Jewish Hist. 186,
188 (2003), Shields manages to “capture[] a world seemingly out of touch with today’s
gesellschaft (rational, contractual) society in the Western world, as compared with the
traditional gemeinschaft (communal society of yesteryear)”).
104. Richard A. Posner, A Theory of Primitive Society, with Special Reference to
Law, 23 J.L. & Econ. 1, 26 (1980).
105. See generally Clifford Geertz, The Bazaar Economy: Information and Search
in Peasant Marketing, 68 Am. Econ. Rev. 28 (1978) (describing how known uncertainties in the context of trading cattle were counteracted through the “institutional
peculiarities” of “extreme division of labor and localization of markets, heterogeneity of products and intensive price bargaining, fractionalization of transactions and
stable clientship ties between buyer and sellers, itinerant trading and extensive traditionalization of occupation in ascriptive terms”) (emphasis added).
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needs of modern risk society, people always have an incentive to
add a “status”-based layer to their formal contractual relationships.
“Status,” as a functional equivalent to trust, characteristically shapes
the contours of agreements in modern society.
C. Transcending the “Status”/Contract Dichotomy: Two Models
As pointed out in my discussion concerning the word “hitherto,”
Maine’s “from Status to Contract” thesis was normatively charged.
Maine associated status with inefficiency, dependence, and superstition. The move to contract, conversely, signified to him a turn
towards prosperity, self-reliance, and rationality.106 Notably, his argument in favor of social regulation by way of contract suffers from a
logical gap. A move away from pure status or “status”-based regulation does not necessarily implicate a turn in the direction of pure
contractual regulation.107 Similarly, there is a difference between
“the optimistic belief that the regulative principle of status can do
everything and the pessimistic conclusion that it can do nothing.”108
In line with this, Part IV of this Article established that “status”like elements, understood as an aspect of both standardization and
relational contracting, operate as mediating factors for two of modern private law’s characteristic tensions: the tension between freedom of contract and constitutionally mandated paternalism, and the
tension between perfect contracting solutions and second-best alternatives. Specifically, I argued that “status”-like elements balance
justice and efficiency in modern private law by operating as both an
approximation of aggregated consumer preferences and as a functional equivalent to trust.
Crucially, my analysis of the various conceptual forces struggling
for dominance in twentieth- and twenty-first-century private law
discourse has also shown that “status”-like elements operate invariably within a complex framework of independently existing contractual structures. We can no longer ignore the multidirectional and
multidimensional relationship between “status” and contract. The
interaction between “status”-like and contractual elements largely
discredits my second tentative explanation for modern private law
scholars’ continued reliance on Mainean “status”-speak. The argument that modern society is witnessing a reverse movement from the
mostly private-autonomous creation of contractual rights and obligations to the heteronomous imposition of such rights and obligations
106. Burrow, supra note 30, at 56–57 (“[Maine’s status-contract dichotomy constitutes] a distinction between two moral as well as social worlds: custom set against
analysis and intellectual energy, tradition against expediency, dependence against
self-reliance, superstitious fear against mutual trust.”).
107. Graveson, supra note 93, at 261 (“There are two sides to Maine’s thesis, and
a movement away from status does not necessarily connote a movement in the direction of contract.”).
108. Walter B. Kennedy, From Contract to Status?, 4 N.Y. L. Rev. 49, 51 (1926).
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on the part of society or the state is not corroborated by empirical
evidence.
This begs the question: is it possible to formulate a more convincing theory of the complex interplay between “status”-like and
contractual elements in modern private law? While any effort in this
direction is unlikely to salvage Mainean “status”-speak in relation
to contract standardization or relational contracting, efforts to this
end might offer guidance for future theoretical or empirical attempts
at fleshing out what, if anything, is modern about our contemporary
private law.
Woodard thought it important to separate Maine’s “Victorian
achievements” from his “juridical achievements.”109 I agree that
Maine’s aphorism about the nature of socio-legal evolution ought to
be taken out of its ideological context. At the same time, using said
context to illustrate both the limits and opportunities of Maine’s
aphorism seems to me to be of equal importance. Only if “status” and
contract are no longer conceived of as each other’s “radical inverse”
will it be possible to develop a more nuanced approach to the relationship between these two categories.110
To underscore the need for reconceptualization, I briefly summarize one conventional approach to transcending the traditional
“status”/contract dichotomy: the dialectical model synthesized
by Bergman (1). Illustrating the ways in which this view fails
to pay sufficient regard to complex possibilities for interaction
between “status” and contract, I then set out, explain, and to some
extent defend my alternative model of the relationship between
Maine’s categories in modern private law: status-contract and
contract-status (2).
1. The Dialectical Model: “Status,” Contract, and the
Bidirectional Pendulum of History
Bergman’s dialectical model attempts to eschew the linearity,
one-directionality, and conceptual inertia associated with Maine’s
“status”/contract dichotomy.111 Bergman argued that “status” and
contract should be seen as coexisting in “a precarious state of moving
equilibrium, alternating in primacy with the economic and cultural
needs of the particular epoch.”112 Isaacs, in a similar vein, suggested
several decades earlier that “legal history has room not merely for
one single line of progress in one direction or the other, but for a
kind of pendulum movement back and forth between periods of standardization and periods of individualization.”113 Similarly, Pound
109.
110.
111.
112.
113.
Woodard, supra note 20, at 228.
Mantena, supra note 56, at 76.
Bergman, supra note 16, at 172.
Id. at 181.
Isaacs, supra note 67, at 40.
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emphasized that consent-based and “status”-like elements correspond to different societal needs.114
The idea of conceptualizing the relationship between “status”
and contract as a kind of bidirectional pendulum is an interesting
one. Unlike arguments based on a reverse movement from contract
back to “status,” the dialectical view rejects Maine’s ideologically
charged conceptions of history and progress. Importantly, it allows
for the theoretical possibility of viewing “status” as an emancipated
element of modern private law. At the same time, Bergman’s dialectical view makes it impossible for “status” and contract to coexist and
interact in modern society. It fails to pay attention to the particular
interplay between “status” and contract as observed in the context of
both standardization and relational contracting. It is this particular
shortcoming that my hybrid model seeks to address.
2. The Hybrid Model: Status-Contracts and Contract-Status
My tentative reconstruction of the dynamic relationship between
“status” and contract goes as follows: In order to make sense of
recent phenomena such as standardization and relational contracting as well as of modern private law’s characteristic tensions, it is
necessary to differentiate between the stage of contract creation and
the stage of contract regulation. If both “status” and contract are
split along temporal and functional lines, these categories are supplanted by two hybrid types: (a) status-contracts and (b) contractstatus. Inconsistencies remain even if contract standardization and
relational contracting are reconceptualized in terms of these hybrid
types. They nevertheless go some way towards theoretically reflecting the complex interplay between contractual and “status”-like elements in modern private law. Most importantly, they constitute a
starting point for innovative socio-empirical experimentation in this
context.
a. Status-Contracts
The first hybrid type to emerge from the distinction between
the creation and regulation stage in contractual relations is that of
status-contract. Status-contracts describe agreements that are at
the creation stage heavily influenced by the “ascribed” or “achieved
status” of the contracting parties all the while subsequently being
114. Cf. Roscoe Pound, Survey of Social Interests, 57 Harv. L. Rev. 1, 9 (1943) (“[I]n
rural, pioneer, agricultural America there was no call to limit the contracts a laborer
might make as to taking his pay in goods. To have imposed a limitation would have
interfered with individual freedom of industry and contract without corresponding
gain in securing some other interest. On the other hand, in industrial America of the
end of the nineteenth century, a regime of unlimited free contract between employer
and employee in certain enterprises led not to conservation but to destruction of values. . . . Hence we began to put limits to liberty of contract between employer and
employee.”).
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governed by the formal terms of the contract. This, I would argue,
adequately describes standard form contracts in modern commercial
contexts.
Businesses’ take-it-or-leave-it attitude limits the extent to which
consumers are able to private-autonomously determine their rights
and obligations. The same holds true for modern governments’ regulatory interventions aimed at protecting people from informational
asymmetries and inequality of bargaining power. To be sure, people’s
personal status as consumers does not automatically create the legal
relationship in question. This is still achieved by way of contract.
However, their categorization as consumers substantially limits the
choices initially available to the parties as regards what rights and
obligations the contract may include in the first place.
The recently abandoned CESL exemplifies the notion of statuscontracts. Due to the particular political and institutional challenges
facing private law harmonization in the European Union, the CESL
was configured as an optional instrument. Both businesses and consumers would have had to explicitly opt into it. Nevertheless, the
CESL would have had considerable standardizing effects.115 In business-to-consumer (B2C) contexts, parties who decided to opt into
the CESL would have had to choose its provisions in their entirety,
not only partially or selectively.116 What is more, mandatory rules in
favor of consumers automatically attached to all B2C contracts and
could be derogated from only in favor of the consumer.117 Finally, all
other non-individually negotiated terms were subject to a general
unconscionability test.118
This is remarkable insofar as most national consumer regulation laws make variation of otherwise mandatory provisions considerably easier. The CESL, even more so than most national consumer
protection legislation, thus espoused a “status”-based approach to
determining the rights and obligations of individuals entering into
consumer contracts.119
I have suggested that we need to transcend the strict “status”/
contract dichotomy to be able to account for the interactions between
the two conceptual categories. To what extent do “status”-like and
contractual elements interact in the context of standardization?
“Status,” as an aggregated consumer preference, should influence
what rights and obligations are imposed on parties to a contract. In
115. See Thomas Ackermann, Public Supply of Optional Standardized Consumer
Contracts: A Rationale for the Common European Sales Law?, 50 C ommon M kt .
L. Rev. (Special Issue) 11, 23–24 (2013).
116. Cf. CESL, supra note 74, art. 8(3) (“In relations between a trader and a consumer the Common European Sales Law may not be chosen partially, but only in its
entirety.”).
117. The mandatory rules I discuss pertain in particular to withdrawal rights and
remedies for defective products.
118. Cf. CESL, supra note 74, arts. 83–85.
119. Cafaggi, supra note 98.
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line with this, it seems legitimate to question why consumers should
be competent to opt into the CESL only to subsequently be declared
incompetent to amend its provisions.120
Socio-legal insights into the actual behavior of parties within a
particular contractual relationship should conversely influence how
a particular consumer category is configured in the first place. 121
While the exact nature of the interaction between contract and “status” in the context of status-contracts is beyond the scope of this
Article (as well as beyond the scope of empirical research currently
available), the important point is that it is only by reference to this
hybrid type that we can adequately make sense of such interactions.
b. Contract-Status
The second hybrid type to emerge from the distinction between
the creation and the regulation stage in contractual relations is that
of contract-status. Contract-status denotes the idea that contracts
in modern society are more often than not created by way of formal
agreement only to subsequently be governed by “status”-like or relational elements. Macaulay observed such a process in his interviews
conducted more than fifty years ago. Most of the disputes he surveyed were thus settled by way of informal procedures, even if formal provisions on the matter in question were part of the contract.
Hadfield and Bozovic’s recent study largely confirmed Macaulay’s
findings.122
The notion of contract-status, I would argue, is particularly
apt in the context of agreements that formalize only part of a considerably more extensive relationship between two parties. This
is particularly the case with complex commercial transactions
such as franchise, long-term supply, and licensing contracts, all of
which involve non-negligible reputational elements. 123 Formal contracts exist. But more often than not the parties would consider it
120. Cf. Ackermann, supra note 115, at 23–24.
121. See, e.g., Omri Ben-Shahar & Carl E. Schneider, The Failure of Mandated
Disclosure, 159 U. Pa. L. Rev. 647 (2011) (concluding that mandated disclosure not
only fails to achieve its goal of informing consumers and improving their contracting
decisions but that it may also impose considerable costs in the form of damaged individual and social interests).
122. See Hadfield & Bozovic, supra note 91.
123. For a discussion of status and contract in the context of franchising law,
see in particular Christian Joerges, Contract and Status in Franchising Law, in
Franchising and the Law: Theoretical and Comparative Approaches in Europe and the
United States 12 (Christian Joerges ed., 1991). Joerges suggests that “[t]he analysis
of doctrine and case law on franchising has repeatedly shown that neither treating
it as a contract for services (“contract creates status”) nor the contractual opposite
(“contract overcomes status”) can be consistently maintained,” but that “it has . . .
also been shown that between these two poles, legal principles can be continued and
further developed that lead beyond thinking in status terms and also beyond the
purely contractual model of social relationships . . . .” My argument, as detailed in
Part IV, runs along similar lines.
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detrimental to their relationship to play by the rules contained
therein.
Though beyond the scope of this Article, it might equally be
possible to conceive of legal relationships like marriage, civil partnership, and employment as instances of contract-status.124 While
a formal contract normally delineates the rights and obligations
between spouses, civil partners, employers, and employees, the
actual content of the relationship is determined by the trust and
power dynamics that develop between the parties over time.
The question to what extent “status”-like and contractual elements interact in the context of relational contracting is an interesting one that has in recent times received considerable attention from
law and economics scholars. 125 While these scholars have mainly
focused on the way in which contractual elements capitalize on the
normative clout of relational or “status”-based elements, it seems
equally legitimate to suggest that parties specifically craft contractual elements with the normative clout of relational or “status”-based
elements in mind.
D. Conclusion
Part IV of this Article has shown that there are ways of accounting for the multidirectional, multidimensional, and even interactional relationship between “status” and contract in the context of
both contact standardization and relational contracting.126 At the
same time, obvious inconsistencies remain even if we differentiate
between the stages of contract formation and contract regulation.
124. While this Article is mostly concerned with general contract law, see KahnFreud, supra note 22, for “status” and contract in the context of employment and
labor law. See also Aditi Bagchi, The Myth of Equality in the Employment Relation,
2009 Mich. St. L. Rev. 579 (2009); Simon Deakin & Frank Wilkinson, The Law of the
Labour Market: Industrialization, Employment and Legal Evolution 275 (2005). For a
recent discussion of “status” and contract in the context of family law, see Martha
M. Ertman, Marital Contracting in a Post-Windsor World, 42 Fla. St. U. L. Rev. 479
(2015); Jill Elaine Hasday, Family Law Reimagined 120–24 (2014); Yehezkel Margalit,
Artificial Insemination from Donor (AID)—From Status to Contract and Back Again?,
20 B.U. J. Sci. & Tech. L. 69 (2015); Janet Halley, Behind the Law of Marriage (I):
From Status/Contract to the Marriage System, 6 Harv. J. Legal Left 1 (2010); Gillian
Douglas, Marriage, Cohabitation, and Parenthood—From Contract to Status?, in
Cross Currents: Family Law and Policy in the U.S. and England (Sanford N. Katz et al.
eds., 2000); Jana B. Singer, Legal Regulation of Marriage: From Status to Contract
and Back Again? (June 23–24, 1997), http://digitalcommons.law.umaryland.edu/cgi/
viewcontent.cgi?article=1762&context=fac_pubs (unpublished manuscript) (paper
presented at a Family Impact Seminar roundtable meeting, “Strategies to Strengthen
Marriage: What Do We Know? What Do We Need to Know?”).
125. For a recent exploration of the way in which relational and legal elements
reinforce one another, see Scott Baker & Albert Choi, Contract’s Role in Relational
Contracting, 101 Va. L. Rev. 559 (2015).
126. For an alternative reconceptualization of the relationship between contract
and “status” in fiduciary law, see Hanoch Dagan & Elizabeth S. Scott, Reinterpreting
the Status-Contract Divide: The Case of Fiduciaries, in Contract, Status and Fiduciary
Law 51 (Paul B. Miller & Andrew S. Gold eds., 2017).
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It is these inconsistencies, as well as some tentative considerations
about how to address them, to which I now turn.
V. From Status to Contract to . . . ?
What can Maine’s “from Status to Contract” thesis tell us about
modern private law? I first flesh out those caveats that follow from a
critical analysis of the two hybrid types I constructed (A). By reference to the methodological postulates espoused by Maine more than
150 years ago, I then suggest that the answer to the question I pose
can only be found through a combination of empirical inquiry into
economy and society with categories and concepts from the realm
of legal theory (B). This leads me to comment on one final possible
answer to the question of why modern private law scholars continue
to engage in Mainean “status”-speak: their rediscovery of macro-historical approaches to critically evaluate private law rules.
A. Accounting for Conceptual Interaction in Modern Private Law
My two hybrid types, status-contract and contract-status, put
considerable strain on Maine’s categories. Most importantly, they
fail to provide much insight into the various ways in which contractual and “status”-like elements interact to reinforce, undermine, substitute, supplement, and supersede one another. It is not only the
case that contract and “status” in modern private law interact at
clearly definable stages. These interactions themselves increasingly
blur the boundaries between the stage of contract formation and
the stage of contract regulation. What status-contract and contractstatus obscure is the very real possibility that what is characteristic about agreements in modern private law is not their contractual
or “status”-like dimension—or indeed some combination of the two.
Modern private law may well be characterized by something different altogether.
Further research is necessary to determine whether there is
indeed such a different dimension and, if so, how it can be conceptualized and integrated into the intellectual history of private law in
modern times. The shift from industrial to information society and
the impact this has had on the nature of contracts and contracting
certainly suggest that updating the terminological toolbox of modern private law is necessary.127 That said, it may only be with the
benefit of hindsight that such an update will be possible. In light of
this, I now expand on what, in my view, constitutes Maine’s true legacy: his emphasis on the societal provenance of interpersonal rights
and obligations and his consequential endorsement of a socio-legal
127. For a general account of the shift from an industrial to information society as
well as its impact on contracts and contracting, see Manuel Castells, The Information
Age: Economy, Society and Culture (2d ed. 2010).
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jurisprudence. It is this kind of intellectual endeavor, I argue, that is
most likely to produce interesting insights into what, if anything, is
modern about our contemporary private law.
B. Maine’s Intellectual Legacy: Recovering Socio-Legal
Jurisprudence?
I have so far only hinted at analyses of the particular ways in
which “status” and contract intersect and interact. As mentioned
above, Hadfield and Bozovic recently confirmed Macaulay’s earlier
findings. At the same time, they also observed considerable changes
in the way businesses have been organized and commercial relationships have been structured in the half century since Macaulay’s
interviews. Hadfield and Bozovic noted that “rather than consisting
of a vertically-integrated multi-unit Chandlerian structure, the prototypical modern firm is embedded in an eco-system of relationships
between diverse units that contribute to the production process.”128
They further found that in nontraditional industries associated
with high rates of technological or organizational innovation, parties still rely heavily on informal means of contract enforcement—
but on the basis of the highly formalized contracts initially drawn
up. Against this background, Hadfield and Bozovic suggest that
there may be value in drawing up formal contracts while relying at
the same time on informal mechanisms to enforce a specific contract
provision. They argue that formal contracting can help to “coordinate
and improve the efficacy of informal contract enforcement mechanisms.”129 Here, the possibility of what has elsewhere been referred
to as “braiding” would need to be examined more closely.130
Hadfield and Bosovic concede that more research is necessary
to capture what defines complex commercial relations in modern
information society: status, “status,” contract, hybrid notions, or
something different altogether. Concurringly, I would suggest that
128. Hadfield & Bozovic, supra note 91, at 2.
129. Id. at 5.
130. Ronald J. Gilson et al., Braiding: The Interaction of Formal and Informal
Contracting in Theory, Practice and Doctrine, 110 Colum. L. Rev. 1377, 1377 (2010)
(explaining that braiding constitutes the practice of responding to rising uncertainty levels for particularly innovation- and cooperation-intensive projects by
“writing contracts that intertwine formal and informal mechanisms . . . in a way
that allows each [party] to assess the disposition of the other to respond cooperatively and effectively to unforeseen circumstances”). See also Scott Baker & Albert
H. Choi, Crowding In: How Formal Sanctions Can Facilitate Informal Sanctions
(Virginia Law & Economics Paper No. 2014-01; Virginia Public Law & Legal Theory
Paper No. 2014-04) (analyzing how formal/legal and informal/reputational sanctions
are deployed in long-term relational contracts and arguing that effective deterrence
regimes tend to view these two types of sanctions as both substitutes and complements, selectively combining their respective features). In this context, Gunther
Teubner’s analysis of business networks as “connected contracts” may be worth a
closer look. See generally Gunther Teubner, Networks as Connected Contracts (Hugh
Collins ed., Michelle Everson trans., 2011).
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any addition to Maine’s aphorism along the lines of “from Status to
Contract to . . . ” would at this point be premature. In the remainder of this Article, I will thus limit myself to pointing to what, in
my view, constitutes the most promising approach for arriving at an
aphorism that captures private law in twenty-first century information society as powerfully as Maine’s general thesis does in relation to private law in nineteenth- and twentieth-century industrial
society.
I suggest that in order to adequately describe what defines complex commercial relations in modern information society, private law
scholars would be well-advised to combine empirical inquiry into the
economy and society with categories and concepts from the realm of
legal theory—i.e., the very kind of research Maine himself promoted
as producing interesting insights into what is modern about our
private law.
In a recent review of Rabban’s excellent account of the historical
turn in American legal thought—to which Maine’s scholarly achievements were of fundamental importance—Tamanaha suggested the
following:
Historical jurisprudence . . . will once again take the
field as a formidable rival to natural law and legal positivist theory, though under a broader name like social-legal
jurisprudence, when a theorist combines the insights of historical and sociological jurisprudence with contemporary
social-legal work to articulate a fully developed and convincing theory of the social nature of law.131
Historical jurisprudence here refers to the influential tradition of
nineteenth-century jurists, epitomized by Savigny and Maine, which
subsequently influenced or morphed into the sociological jurisprudence of Jhering, Ehrlich, Holmes, and Pound, and which, in turn,
culminated in the German-American realist tradition.132 What is
characteristic about historical jurisprudence for Tamanaha is that it
espouses “a core theory of law as a social institution,” that it holds
“the conviction that social-legal development is ongoing in connection with social forces,” and—in particular—that it expresses
131. Brian Z. Tamanaha, The Unrecognized Triumph of Historical Jurisprudence,
91 Tex. L. Rev. 615, 632 (2013); Rabban, supra note 2.
132. For an overview of the demise of classical legal thought, and the rise of sociological jurisprudence and the American legal realist tradition, see Duncan Kennedy,
Three Globalizations of Law and Legal Thought: 1850–2000, in The New Law and
Economic Development: A Critical Appraisal (David M. Trubek & Alvaro Santos eds.,
2006); Neil Duxbury, Patterns of American Jurisprudence (1997); Morton Horowitz,
The Transformation of American Law 1870–1960 (1992). For the German legal realist
tradition, see James E. Herget & Stephen Wallace, The German Free Law Movement
as the Source of American Legal Realism, 73 Va. L. Rev. 399 (1987); Katharina Isabel
Schmidt, Law, Modernity, Crisis: German Free Lawyers, American Legal Realists, and
the Transatlantic Turn to “Life,” 1903–1933, 39 German Stud. Rev. 121 (2016).
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“a commitment to empirically informed theorizing about law.” 133
Writing both descriptively and normatively about the “unrecognized
triumph of historical jurisprudence,” Tamanaha drives home the
point that just like valuable social-scientific research is impossible
without some degree of abstraction and categorization, legal theory
and history have little meaning if not adequately rooted in empirical
reality.
I wish to make no judgment on the particular merits and demerits of historical jurisprudence in its past or present form. The multidimensional nature of “status” and contract as well as the various
extra-legal factors affecting them, however, call for an interdisciplinary approach of the kind Tamanaha envisions. At the same time,
modern private law scholars would do well to recognize the limits
of the sociological-contextual investigation advocated by Maine and
Tamanaha. The imposition of nonconsensual and “status”-based
rights and obligations has historically not necessarily been the consequence of a particular person’s empirically ascertainable position
in society. As Gordley’s work on the Aristotelian tradition in early
modern private law has shown, personal rights and obligations have
in the past also been imposed on the basis of philosophical precepts
about the nature or essence of a particular type of agreement.134
Concluding Remarks
Modern private law scholars’ continued engagement in “status”speak may be nothing more than a stylistic fad, and a testament
to the “catchiness” of Maine’s terminology. Academics, after all, frequently employ terms that seem en vogue, without caring much
about the meaning behind them. This possibility seems particularly
pertinent, given the rhetorical appeal and worldly air of Maine’s aphorism. It is too trite, however, to merit much consideration.
A more interesting explanation for the revival of—at least nominal—references to Maine’s “from Status to Contract” thesis may
be the recent trend towards macro-historical approaches in the
humanities and social sciences. Armitage and Guldi suggest that
contemporary history is witnessing a return of the longue durée.135
Longue durée history prioritizes large time scales—decades, centuries, and even millennia—over projects covering just a few years. To
Armitage and Guldi, restoring the longue durée holds the potential
133. Tamanaha, supra note 131, at 625. He furthermore, rightly points out that
the “law-society-connection” can be traced all the way back to Montesquieu, The
Spirit of the Laws (Anne M. Cohler et al. eds. & trans., Cambridge University Press
1989) (1748).
134. See in particular J ames G ordley , T he P hilosophical O rigins of M odern
Contract Doctrine chs. 4–5 (1991).
135. See especially David Armitage & Jo Guldi, The History Manifesto (2014). For
further references, see also David Armitage, What’s the Big Idea? Intellectual History
and the Longue Durée, 38 Hist. Eur. Ideas 493 (2012).
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2017]
H E N R Y M A I N E ’ S “ M O D E R N L AW ”
185
of “return[ing] to history its mission as a critical social science.”136
Only through a return to the longue durée can twenty-first-century
scholars understand and explain “the genesis of contemporary global
discontents.”137
One of the works tracing the long-term rise of such “global discontents” is Thomas Piketty’s Capital in the Twenty-First Century.138
In it, Piketty examines the origins of wealth and income inequality in Europe and the United States since the eighteenth century.
Drawing on an eclectic array of sources—ranging from statistical
information about interest rates to the literary works of Jane Austen
and Honoré de Balzac—Piketty advances the proposition that in an
economy in which the return rate on capital exceeds growth rates,
inherited wealth will always grow faster than earned wealth. What
this means is that if things remain unchanged, capitalism will lead
to levels of inequality that are plainly incompatible with the tenets
of democracy and social justice.139
Piketty does not make reference to Maine. What makes his work
relevant in the present context, however, is the fact that—methodological concerns notwithstanding—Piketty employs a macro-historical approach to illustrate the extent to which capitalism, as a
fundamental social institution, is in need of reimagination lest it
should destroy the very foundations upon which it rests.140 Applying
macro-historical approaches to the study of private law might produce results equally as insightful as Piketty’s work. I would argue,
for example, that such an approach holds the potential of shedding
much needed light on private law’s role in exacerbating economic
inequality.
Taking critical perspectives on private law rules is nothing new,
of course. From Karl Marx (who, granted, focused mainly on the
role of corporations rather than the state in facilitating inequality)
to the American Legal Realists (who went to great lengths to flesh
out the role of power in law and adjudication) to the Critical Legal
Theorists and their successors (who sharply condemned any unwarranted exercise of power through law), jurists the world over have
frequently revealed that the rules of the private law affect the extent
to which people are able to realize their particular conceptions of the
good life. What they have not always done, however, is draw on large
136. Armitage & Guldi, supra note 135.
137. Id. at 37.
138. Thomas Piketty, Capital in the Twenty-First Century (2014). For a criticism
of Piketty’s work, see especially David Singh Grewal, Book Review: The Laws of
Capitalism, 128 Harv. L. Rev. 626 (2014).
139. The only way to avoid this, Piketty argues, is to institute a global “confiscatory” tax on inherited wealth, possibly in combination with the overt use of inflation.
See Piketty, supra note 138.
140. For a comparative analysis of the manifestos written by Piketty on the one
hand and Guldi and Armitage on the other hand, see also Markus D. Dubber, New
Historical Jurisprudence: Legal History as Critical Analysis of Law, 2 Crit. Analysis
L. 1 (2015).
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historical time scales for the purpose of formulating, illustrating, and
strengthening their arguments.
In light of this, I suggest that Maine’s project—in addition to
providing the methodological postulates by which to update the
terminological toolbox of modern private law—serves as a timely
reminder of the value of macro-historical approaches for the purpose
of studying, analyzing, and criticizing legal phenomena. In particular, I argue that it should encourage modern jurists not to shy away
from big ideas and big legal history all the while taking seriously the
duties they owe as members of the legal profession, as participants
of a broader intellectual and academic discourse, and as citizens of
their respective societies.141
141. In this context, the value of a closer degree of cooperation between critical
legal history and critical legal theory cannot be emphasized strongly enough. The
term “critical legal history” was famously coined by Robert W. Gordon, in Critical
Legal Histories, 36 Stan. L. Rev. 57 (1984). For a recent reappraisal of this term and
the idea for which it stands, see Jessica K. Lowe, Radicalism’s Legacy: American
Legal History Since 1998, 36 Zeitschrift für Neuere Rechtsgeschichte [ZNR] 261
(2014). For a more general consideration of the relationship between legal history and legal theory, see, e.g., Introduction to Legal Theory and Legal History
xi (Maksymilian Del Mar & Michael Lobban eds., 2014); Symposium, Theorizing
Contemporary Legal Thought, 78 Law & Contemp. Probs. 1 (2015); Katharina Isabel
Schmidt, Book Review Essay: “Rethinking Modern European Intellectual History,” 3
Comp. Legal Hist. 196 (2015).
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