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Henry Maine's 'Modern Law': From Status to Contract and Back Again?

30 Pages Posted: 25 Apr 2017 Last revised: 22 Sep 2017

Katharina Isabel Schmidt

Princeton University - Department of History, Students; Yale University, Law School, Students

Date Written: April 21, 2017

Abstract

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.

Keywords: Henry Maine, Contract, Status, Relational Contract Theory, Contract Standardization, Informality, Braiding & Scaffolding, Behavioral Law & Economics, Modern Private Law Theory, Critical Legal History

Suggested Citation

Schmidt, Katharina Isabel, Henry Maine's 'Modern Law': From Status to Contract and Back Again? (April 21, 2017). 65 American Journal of Comparative Law (2017) 145. Available at SSRN: https://ssrn.com/abstract=2956616

Katharina Schmidt (Contact Author)

Princeton University - Department of History, Students ( email )

NJ
United States

Yale University, Law School, Students ( email )

127 Wall Street
New Haven, CT 06511
United States

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