The Status

Before a person can give a binding promise, the law must recognize that person as someone entitled to give it. The agreement between two independent adults begins with a freedom which the agreement itself did not create: each can hold an interest, undertake an obligation, and answer for a decision in a name of their own. Henry Maine asked how that independence had emerged. His contrast between status and contract concerns the source of a person's legal relations. Some duties attach because one occupies a place within a family whose authority one did not choose. Others arise because one has entered an agreement. The movement between them changes who can decide, whose property supports the decision, and whose consent matters. The chooser whom economic analysis so readily places before a set of alternatives has a legal history before making the first choice.

Maine pursued that history through ancient law, with Roman institutions supplying his principal example. In Ancient Law, published in 1861, he described an early order whose legal unit was the family under its head. Its members' positions depended on their relation to that authority. The Roman son under paternal power makes the distinction unusually clear in Maine's account: he might vote, serve as a magistrate, or command his father in an army while remaining dependent in private law. Public responsibility and private independence could thus belong to different parts of the same life. The family Maine describes is also a legal construction, enlarged through adoption as well as descent. His inquiry follows the authority organizing the group, rather than assuming that every relation called familial is simply the expression of blood. Contract becomes historically significant when people acquire the capacity to make obligations outside that inherited organization.¹

The change could proceed through the treatment of particular assets before it amounted to a general independence. Maine traces exceptions to the father's claims over a son's acquisitions: military earnings, later acquisitions in civil employment, and property inherited from the mother. He distinguishes complete ownership from a father's continuing right to enjoy property during his lifetime. These differences matter to the person attempting a bargain. Receiving a benefit, managing an asset, and owning it free of another's claim confer different powers to commit resources. A reform that permits someone to retain one category of earnings may leave other dependencies untouched. The historical movement therefore becomes visible in the details of who may acquire, dispose of, and answer for property. A legal order can enlarge the field in which a person acts independently without replacing every inherited relation at once.²

Maine's famous formula condenses a particular claim with particular boundaries. At the end of the chapter he describes the movement of what he calls progressive societies as having been, hitherto, from status to contract. He restricts status to personal conditions derived from the powers of the family and excludes conditions which themselves result from agreement. His claim is ambitious: he treats the dissolution of family dependency as a consistent direction of change in those societies. Yet the formula supplies neither a timetable for every people nor evidence that every later institution is freer than its predecessor. Even its vocabulary identifies a selected historical field and a period already observed. To turn it into a promise that all societies must reach the same destination would add a prediction to the history. The useful question remains concrete: which obligations arise from an assigned condition, and which can this person undertake or refuse?³

The chapter's treatment of women shows why the scope of independence must be stated precisely. Maine distinguishes freedom from the guardianship of male relatives from a married woman's subordination to her husband. He criticizes the proprietary disabilities of wives and contrasts common-law rules with the modifications supplied by equity and statute. His concluding example of a woman's contractual independence expressly stops at marriage. The qualification belongs inside the account of progress: a legal system could widen some people's powers while preserving a dependency that enclosed much of another person's life. It also prevents a simple equation between the existence of contracts and equal legal standing. Where someone cannot independently control the property on which a promise depends, the offer of an agreement does not itself remove the restriction. The capacity to become a contracting party must be examined before the fairness of the offered terms.⁴

Equal capacity to contract still leaves the value of the available choices open. Suppose two workers may each accept or refuse a payment of ten for work costing them two in effort. Each obtains eight on the stipulated common scale. One can obtain seven elsewhere; the other can obtain only two. Acceptance improves their positions by one and six respectively, although the legal power to refuse is the same. Improving the second worker's alternative changes the bargaining situation without changing that formal power. Conversely, removing a legal disability can enlarge someone's choices even before the offered wage rises. These are different changes, and the value of either should be identified in its own terms. The numerical comparison supplies no prediction of the wage and no finding of coercion. It shows why legal independence, available alternatives, and the division of a bargain's gains require separate accounts.⁵

The rise of the chooser therefore concerns a person's authority to make commitments, together with the institutions through which that authority becomes effective. An agreement can place someone within a relationship of direction, as The Employee showed, while leaving its source and limits distinct from an inherited personal dependency. Nor does the ability to promise make every duty a chosen one: the conditions of legal standing and the rules protecting other people still require an account beyond the parties' bargain. Maine's inquiry helps us ask who is allowed to bind whom, and on what ground. Once the independent parties have entered their agreement, another question follows. Their words will settle only part of what they must do together. The next plate, The Promise, returns to the understanding, discretion, and trust on which the exercise of their new freedom depends.