Henry Maine's 'Modern Law': From Status to Contract and Back Again?
30 Pages Posted: 25 Apr 2017 Last revised: 22 Sep 2017
Date Written: April 21, 2017
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
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