Professional Documents
Culture Documents
Henry Maine's "Modern Law": From Status To Contract and Back Again?
Henry Maine's "Modern Law": From Status To Contract and Back Again?
SCHMIDT*
© 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.
145
Downloaded from https://academic.oup.com/ajcl/article-abstract/65/1/145/3867144
by University of Durham user
on 13 January 2018
146 T H E A M E R I CA N J O U R N A L O F C O M PA R AT I V E L AW [Vol. 65
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 private-
autonomous creation of contractual rights and obligations to the het-
eronomous 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 interac-
tion that my discussion brings to light.
To clarify any such interaction between “status”-like and contrac-
tual 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 well-
advised 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 cat-
egories be evidence of a rediscovery of the value of macro-historical
approaches for engaging critically with (private) law as a fundamen-
tal 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.
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 hierarchi-
cal 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 pros-
pects of trade and marriage. Maine’s aphorism has been criticized as
oversimplistic, unsupported by anthropological evidence, and moti-
vated by misguided Victorian beliefs in the linear progress of socio-
cultural 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 rela-
tions has shown that parties’ rights and obligations are frequently
determined by noncontractual factors such as the personal relation-
ship 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 par-
ticular 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 evolu-
tion. I then address conventional lines of criticism launched against
Maine’s theory in Part II. On the one hand, I present the method-
ological, 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 move-
ment 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].
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 incon-
sistent—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 limi-
tations 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 witness-
ing 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 evi-
dence, 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 pri-
vate law scholars are describing by reference to “status” may be suf-
ficiently 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 nat-
urally 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 underly-
ing 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 move-
ment 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
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).
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 phi-
losophy 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 exer-
cised 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 con-
nection 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.
20. Cf. Rabban, supra note 2, at 147 (“Within jurisprudence . . . Maine’s domi-
nant 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 dis-
cussed 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 Kahn-
Freud, A Note on Status and Contract in British Labour Law, 30 Mod. L. Rev. 635,
636 (1967).
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 liabili-
ties. 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 own-
ership, 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 com-
parative 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.”).
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 preva-
lent 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 dic-
tum (‘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).
view of this more general theory about the nature and direction of
socio-legal evolution, we may conclude that Maine himself antici-
pated that his theory about the movement of progressive societ-
ies might have to be substantively revised in light of contemporary
developments.
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 meth-
odology. 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 occa-
sionally 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 problem-
atization 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.
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 alter-
native 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).
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 com-
plex anthropological study of the Trobriand Islanders emphasized the existence of
“enlightened self-interest” alongside motives of a “highly complex, social, and tra-
ditional 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 temp-
tation 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 indi-
vidualism, 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, per-
sonal empowerment and the pursuit of happiness suggested by Maine’s characteriza-
tion 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.
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 con-
clusions of both rested on mere conjecture, and not historical research.”).
60. Patrick S. Atiyah, Promises, Morals and Law 93 (1981) (“It must be remem-
bered that Maine was writing at a time when it seemed to many that ‘advanced’ soci-
eties 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).
D. Conclusion
Has Maine’s thesis proven successful due to its rhetorical appeal
rather than its material content?65 Maine’s methodological commu-
nitarianism, his undifferentiated equation of “primitive” and ancient
law, and his substantively questionable assumptions about the pre-
modern 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 lim-
its of his thesis. His analyses in later works did not always align per-
fectly 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 particu-
lar 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 valid-
ity 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.”).
as well as Rehbinder, supra note 42. See also Yovel, supra note 53, who, in his fasci-
nating account of Johann Sebastian Bach’s professional journey from status to con-
tract, stays true to the original meaning of Maine’s conceptual categories. Consider
also Johannes Köndgen’s interesting argument about the gradual convergence of con-
tract 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.
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 col-
lection 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).
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.”).
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 individ-
uals’ rights and obligations entirely up to status. Conversely, in the
situations analyzed by Macneil and Macaulay, there were contrac-
tual frameworks in place around which relational and “status”-like
elements could develop. The most interesting part of relational con-
tract 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 sec-
ond-best solutions.
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).
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).
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.
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 multilat-
eral 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 fur-
ther quantitative and documentary evidence to refute Edwards’s and Ogilvie’s criti-
cism 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 homogene-
ous 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 uncer-
tainties in the context of trading cattle were counteracted through the “institutional
peculiarities” of “extreme division of labor and localization of markets, heterogene-
ity of products and intensive price bargaining, fractionalization of transactions and
stable clientship ties between buyer and sellers, itinerant trading and extensive tradi-
tionalization of occupation in ascriptive terms”) (emphasis added).
106. Burrow, supra note 30, at 56–57 (“[Maine’s status-contract dichotomy consti-
tutes] 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 direc-
tion of contract.”).
108. Walter B. Kennedy, From Contract to Status?, 4 N.Y. L. Rev. 49, 51 (1926).
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 val-
ues. . . . Hence we began to put limits to liberty of contract between employer and
employee.”).
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 rela-
tional elements. Macaulay observed such a process in his interviews
conducted more than fifty years ago. Most of the disputes he sur-
veyed were thus settled by way of informal procedures, even if for-
mal 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 con-
siderably 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 con-
tracts exist. But more often than not the parties would consider it
D. Conclusion
Part IV of this Article has shown that there are ways of account-
ing for the multidirectional, multidimensional, and even interac-
tional 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 Kahn-
Freud, 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).
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).
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, fre-
quently 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 aph-
orism. It is too trite, however, to merit much consideration.
A more interesting explanation for the revival of—at least nomi-
nal—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, centu-
ries, 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).
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 his-
tory 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).