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Status: Problems of Definition and Use

  • Geoffrey MacCormack

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Sir Henry Maine's Ancient Law, first published in 1861, postulated legal development in terms of an evolution from status to contract. Since that time both lawyers and anthropologists have made frequent use of the notion of status in their characterisation of law or society. Although status is a concept well known in social theory whose exponents, independently of Maine, have worked out its content and application, much that has been written about status in a legal or anthropological context owes its inspiration to him. Maine's status to contract thesis has proved of interest both to lawyers studying the history of the common law or modern developments in the law of contract and to anthropologists studying social and legal phenomena in simple or tribal societies.

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1 Status in the Common Law (1953).

2 Especially in The Ideas in Barotse Jurisprudence, 2nd ed. (1972).

3 See, for example, Radcliffe-Brown, A. R., Structure and Function in Primitive Society (1952), 37; Lienhardt, G., Social Anthropology, 2nd ed. (1966), 60el seq.

4 See, for example, Parsons, Talcott, Essays in Sociological Theory, revised ed. (Free Press, 1964), 75etseq., 388el seq.; Nadel, S. F., The Theory of Social Structure (1957), 28el seq.; Beattie, J., Other Cultures (1964), 36.

5 See, for example, Austin, John, Lectures on Jurisprudence, 4th ed. by Campbell, R., 11, 746; Salmond on Jurisprudence, 12th ed. by Fitzgerald, P. J. (1966), 240; Allen, C. K., Legal Duties (1931), 42. For status in the context of the conflict of laws see Hicks, J. C., “Jargon and Occult Qualities” (1956) 19 M.L.R. 158.

6 He defined status as “a special condition of a continuous and institutional nature, differing from the legal position of the normal person, which is conferred by law and not purely by the act of the parties, whenever a person occupies a position of which the creation, continuance or relinquishment and the incidents are a matter of sufficient social or public concern,” Status in the Common Law, 2.

7 SirMaine, Henry, Ancient Law, ed. SirPollock, F. (1916), 172et seq.

8 Maine explains the relics of archaic status left in the modern law “the child before years of discretion, the orphan under guardianship, the adjudged lunatic” on the ground that such classes of person “do not possess the faculty of forming a judgment on their own interests; in other words … they arc wanting in the first essential of an engagement by Contract,” op. cil. 173.

9 Cf. generally Feaver, G., From Status to Contract (1969), 53et seq.

10 Of the accounts which I have seen those of Gravcson (Status in the Common Law, 36. 50 et seq.) and Kahn-Freund ((1967) 30 M.L.R. 636) come closest to seeing this limitation.

11 Pound, R., Interpretations of Legal History (1923), 54et seq.; Graveson, , op. cit. 34et seq. (recognising, however, that the dictum was formulated by Maine in such a way as to be largely inapplicable to the common law).Pospisil, L., Anthropology of Law (1971), 150. goes even further and suggest that on the basis of modern anthropological research Maine would have abandoned his dichotomy altogether.

12 Allen, , Legal Duties, 35el seq. (though holding that the thesis requires modification); Elias, T. O., The Nature of African Customary Law (1956), 81; Feaver. cited note 12; Paton, G. W., A Textbook of Jurisprudence, 4th ed. by Paton, G. W. and Derham, D. P. (1972) 360et seq.; Vinogradoff, P., “Rights of Status in Modern Law”, in Collected Papers II (1928), 230; Friedmann, W., Law in a Changing Society, 2nd ed. (1972), 119et seq.; Harding, A., A Social History of English Law (1966), 113ef seq. (though noting the thesis may be misleading because of the contractual aspect of feudalism); Kahn-Freund, O., “Status and Contract in Labour Law” (1967) 30 M.L.R. 636et seq. (construing Maine according to his own limitation). For the practical consequences of Maine's thesis see Stein, P.. Legal Evolution (1980). 113et seq.

13 So Maine, Graveson (though accepting that the state can confer status on the basis of agreement), Kahn-Freund.

14 See the authors cited in note 12.

15 This is not to say that Maine's thesis cannot be challenged on factual grounds. Indeed he underestimated the role of agreement in early law. Cf. L. Pospisil. cited note 14: MacCormack, G., “Gift,” “Exchange” and “Contract” in Legal Change, Essays in Homour of Julius Stone (1983), 68 esp. 73et seq. Many who cite and rely upon Maine guard themselves with some qualifying phrase such as “there is much of truth in …”

16 Elias, Feaver, Vinogradoff, and perhaps also Paton and Friedmann, all cited in note 12.

17 Graveson, op. cit. 48 et seq., while holding that true status cannot be constituted by a relationship which the parties enter into and terminate at will uses the phrase “legal conditions in the nature of a status.” Cf. also the reservations of Paton, Jurisprudence. 260 el seq.

18 Kahn-Freund, (1967) 30 M.L.R. 639et seq. and cf. Lloyd, Lord of Hampstead, Introduction to Jurisprudence, 4th ed. (co-editor Freeman, M. D. A.), (1979), 661, n.98.

19 One notes that this is already a far wider understanding of status than that held by Maine.

20 See generally, Gluckman, , The Ideas in Barotse Jurisprudence, 2nd ed., 171et seq., and see further below.

21 Allott, A. N., “The People as Law-Makers: Custom, Practice and Public Opinion as Sources of Law in Africa and England” (1977) 21 Journal of African Law 17et seq.

22 Mahoney, N., “Contract and Neighbourly Exchange among the Birwa of Botswana,” (1977) 21 Journal of African Law 40, esp. 58et seq. with a detailed criticism of Gluckman.

23 This is not intended to be an exhaustive list of the uses to which a statement may be put.

24 See note 8 above for Maine's conception of status in the modern law.

25 Maine's words are: “The word Status may be usefully employed to construct a formula expressing the law of progress … we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract,” op. cit. 173 el seq.

26 Graveson, , op. cit. Chap. 2.

27 Graveson, , op. cit. 48et seq. For this actual definition of status see note 6.

28 Graveson, , op. cit. 124et seq.

29 Graveson, , op. cit. 129.

30 See the quotation above.

31 See generally, Graveson, , op. cit., Chap. 6.

32 Gluckman, , op. cit. xvi.

33 For these see above.

34 Gluckman, , op. cit. 79.

35 Gluckman, , op. cit. 151, 171et seq.

36 Gluckman, , op. cit. 146.

37 See generally, Gluckman, , op. cit. Chap. 7.

38 See also Lienhardt, , Social Anthropology, 61; MacCormack, G., “Fault and Causation in Early Roman Law: An Anthropological Perspective,” RIDA XXVIII (1981), 97.

39 Although such relationship if present will also be a relevant circumstance from which the presence or absence of intention is presumed.

40 Gluckman, , op. cit. 219.

41 Despite the phrase “like transactions” Gluckman's understanding of status in the context of offences is wider and more varied than in the context of transactions or property.

42 Cf. Gluckman, , op. cit. 212et seq. and the material from the Ifugao and the Kalinga which he cites.

43 I am not pursuing here the question whether one ought to distinguish between the position or relationship and the rights, duties, etc., which flow from it. Although one usually speaks of rights and duties as a consequence of or as attached to a certain relationship (thus implying a distinction beween the two) it is in fact difficult to conceive of the position or relationship other than as the rights and duties “associated” with it.

44 For examples see Licnhardl (cited nole 3) and Nadel (cited note 4).

45 This is an over-simplification intended to reduce the argument to its essentials.

46 Cf. Pospisil, MacCormack cited above note 15.

47 Cf. MacCormack, G., “The T'ang Code: Early Chinese Law” (1983) 18 Ir.Jur.

48 I am most grateful to Professor Neil MacCormick for help with the formulation of the argument, though he is not, of course, responsible for such deficiencies as remain.

* Professor of Jurisprudence, University of Aberdeen.

Status: Problems of Definition and Use

  • Geoffrey MacCormack

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