Private Law Theory

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.

Schmidt, Katharina Isabel, Henry Maine’s ‘Modern Law’: From Status to Contract and Back Again? (April 21, 2017). American Journal of Comparative Law, forthcoming.

First posted 2017-04-26 06:12:03