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From Status to Contract

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Some of the comments at this post [2] prompt me to quote one of my favorite passages in all of the classical-liberal canon; it is from Henry Sumner Maine’s justly celebrated 1861 book Ancient Law [3]:

Nor is it difficult to see what is the tie between man and man which replaces by degrees those forms of reciprocity in rights and duties which have their origin in the Family.  It is contract.  Starting, as from one terminus of history, from a condition of society in which all the relations of Persons are summed up in the relations of Family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of individuals.  In Western Europe the progress achieved in this direction has been considerable.  Thus the status of the Slave has disappeared – it has been superseded by the contractual relation of the servant to his master.  The status of the Female under Tutelage, if the tutelage be understood of persons other than her husband, has also ceased to exist; from her coming of age to her marriage all the relations she may form are relations of contract.  So too the status of the Son under Power has no true place in the law of modern societies.  If any civil obligation bind together the Parent and the child of full age, it is one to which only contract gives its legal validity.  The apparent exceptions are exceptions of that stamp which will illustrate the rule.  The child before years of discretion, the orphan under guardianship, the adjudged lunatic, have all their capacities and incapacities regulated by the Law of Persons.  But why?  The reason is differently expressed in the conventional language of different systems, but in substance it is stated to the same effect by all.  The great majority of jurists are constant to the principle that the classes of persons just mentioned are subject to extrinsic control on the single ground that they do not possess the faculty of forming a judgment on their own interests; in other words, they are wanting in the first essential of an engagement by Contract.The word Status may be usefully employed to construct a formula expressing the law of progress thus indicated, which, whatever its value, seems to me to be sufficiently ascertained.  All the forms of Status taken account of in the Law of Persons were derived from, and to some extent are still coloured by, the powers and privileges anciently residing in the Family.  If then we employ Status, agreeably with the usage of best writers, to signify these personal conditions only, and avoid applying the term to such conditions as are the immediate or remote result of agreement, we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract [emphasis added].

In the edition that I have (the 1986 edition from Dorset Press), this quotation is found on pages 140-141; it appears at the very end of Chapter V.

Maine’s optimism about the inevitable march of progress is unfashionably whiggish and, I think, overblown.  But his understanding that progress necessarily involves freeing individuals from their status stations — freeing persons from stations assigned by circumstances such as skin color, family name, genitalia, sexuality, nationality — and thereby allowing individuals to determine as best as each can his or her own course through his or her own voluntary choices — that is, through contract — is smack-on correct.

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