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10 Whittier L. Rev. 669 (1988-1989)
From Status to Contract: A Contextual Analysis of Maine's Famous Dictum

handle is hein.journals/whitlr10 and id is 679 raw text is: FROM STATUS TO CONTRACT: A CONTEXTUAL ANALYSIS OF MAINE'S FAMOUS DICTUMt J. RUSSELL VERSTEEG* I. INTRODUCTION In his classic work, Ancient Law, Sir Henry Maine promulgated his now famous proposition that, the movement of the progressive societies has hitherto been a movement from Status to Contract (emphasis original).' Numerous authors, commentators and, no doubt, countless law professors have discussed the merits of Maine's observation and have attempted to argue whether Maine was right or wrong.' The fundamental flaw in most analyses of Maine's famous phrase is that the commentators have failed to consider what Maine said in context. Specifically, modern commentators have applied the modern definition of the word 'status' to Maine's statement, ignoring Maine's clearly stated, narrow definition of that word; and modern commentators have ignored other chapters in Ancient Law wherein Maine makes it crystal clear that his dictum does not advocate con- tractualism or freedom of contract. Instead of analyzing the sec- tions of Ancient Law which are relevant to Maine's famous statement, commentators have contented themselves to extract Maine's words from context and then to present data, observations, and theories of their own in order to criticize Maine. t © 1988 by J. Russell VerSteeg. * Univ. of Conn. School of Law, J.D. 1987; Univ. of North Carolina at Chapel Hill, B.A. 1979; Visiting Assistant Professor of Law, Western New England College School of Law. 1. H. MAINE, ANCIENT LAW 141 (Reprint ed. 1986) (1st ed. 1861). 2. See, e.g., Cohen, The Basis of Contract, 46 HARV. L. REV. 533 (1933) [hereinafter Cohen]; Graveson, The Movement from Status to Contract, 4 MOD. L. REV. 261-72 (1941) [here- inafter Graveson]; Utz, Maine's Ancient Law and Legal Theory, 16 CONN. L. REV. 821-52 (1984) [herinafter Utz]; Farnsworth, The Past of Promise: An Historical Introduction to Contract, 69 COLUM. L. REV. 576-607 (1965) [hereinafter Farnsworth].