The Movement From Status To Contract1
| Published date | 01 April 1941 |
| Author | R. H. Graveson |
| Date | 01 April 1941 |
| DOI | http://doi.org/10.1111/j.1468-2230.1940.tb00778.x |
MOVEMENT FROM STATUS TO CONTRACT
261
THE
MOVEMENT
FROM
STATUS
TO CONTRACT1
IR HENRY MAINE’S famous generalisation of the move-
ment up to his time of progressive societies from status to
S
contracts
is
widely accepted as
an
axiom of social and
legal evolution, but the time for
a
critical review of the dictum
in
its
relation to the Common Law
is
long overdue. The meaning
of the statement
is
clear: that the rights and duties, capacities
and incapacities of the individual are no longer being fixed by
law as
a
consequence of his belonging to
a
class, but those former
incidents of status are coming more and more to depend for their
nature and existence upon the will of the parties affected by
them
;
and the remedy for breach of those incidents
is
becoming
increasingly contractual in nature.*
Maine’s invaluable work lay chiefly
in
research into Roman
and Hindu Law. His writings almost always convey a feeling of
remoteness from the Common Law. In addition to his general
interest in the institutions of Roman Law,
it
is
clear that in
developing his progressive principle
of
status to contract he was
particularly influenced by the family law of the later Roman
Empire, though his theory of the familial origins of society
is
based on the wider organisation of many ancient communities.
“Starting,” he wrote,4
“as
from one terminus of history, from a
condition of society in which all the relations of Persons are
summed up in the relation of the Family, we seem to have steadily
moved towards a phase of social order in which all these relations
arise from the free agreement of individuals.” The movement in
Roman Law was indeed away from the status relation of the
Family: but there are two sides to Maine’s thesis, and
a
move-
ment away from status does not necessarily connote
a
movement
in
the direction of contract. Particularly in Roman Law, where
the idea of contract was to a large extent undeveloped, promises
were enforced in the form of pacts on the basis of
bonajdes,
not
of
the autonomy of the
will.
Free
will
is a theory which one
may be strongly tempted to read back into legal history; but
1
An
extract from the author’s
book.
in course
of
writing,
Stafus
in
fk
Common
Law.
a
“If then we employ
Status,
agreeably with the usage
of
the
best
writers,
to
signify these
personal
conditions
only,
and avoid applying the
term
to
such
conditions
as
are
the
immediate
or
remote
result
of
agreement,
we
may
say
that
the movement
of
f)t”
progressive societies
has
hitherto
been
a
movement from
Status
to
Contract.
Ahf
Law
(Pollock’s
Ed.),
p.
182.
AIIciat
Law.
p.
180.
See
also
id..
pp.
181-2:
“All
the
forms
of
Status
taken notice
of
in
the
Law
of
Persons were derived from, and
to
some extent
are
still
coloured
by,
the powers and privileges ancimtly
dresiing
in
the
Family.”
a
Markby,
Ekmsnk
of
hw
(6th ed.), para.
180.
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