Law and Justice - Roman Law and Human Rights - 14.
3 From Status to
Contract
Janux
4,832
Transcript
>>>>Dr. Kyle Harper: As we begin to touch on some of the basics of Roman
law, a vast
and unwieldy system of law that's extremely technical and complex, and
from which we want
to just draw some of the most basic principles, some of the most basic
ways that it approaches
the problem of justice. Let's think about Roman law in terms of status
and contract.
Let's think about Roman law through the paradigm that was created by one
of the great 19th
century historians of law, an English jurist named Henry Sumner Maine. In
1861, Henry Sumner
Maine published a book called "The Ancient Law". Maine was himself
extremely learned
in Roman law and he was part of a culture that was beginning to think
historically about
ancient law in particular, and about the nature of ancient societies and
the differences between
ancient and modern societies. Maine had a very particular viewpoint on
this problem,
in that he was not just a scholar isolated in the ivory tower at Oxford.
Maine had a
very particular viewpoint on the distinction between what he considered
ancient and more
progressive systems of law. He had served in the British Empire, and in
fact served
in the government over the colonies in India, and his outlook on law is
deeply informed
both by history and by comparative law. Maine deserves to be considered
one of the first
sociologists of law. He's interest in the connections between law and
society and the
kinds of law systems that are created by certain kinds of societies. And
so Maine reflects
on what he calls the ancient law, and he does so principally through the
lens of Roman law.
His 1861 book "The Ancient Law" makes one profound argument: that the
history of legal
systems from more primitive to more progressive is a movement from status
to contract, and
this is the most famous claim of Henry Sumner Maine and certainly of the
ancient law, that
the history of law should be seen as a movement from status to contract.
And think about what
he means when you read him and think about this, and think about what he
means as you
consider his arguments. Status is a way of organizing rights and
obligations that is
characteristic of more simple societies. Contract is a way of organizing
rights and obligations
that is more characteristic of advanced societies. And this is a
distinction that we'll continue
to come back to as we think about the history of law and justice in the
context of the modern
world and the ways that the rise of industrial capitalism separates the
modern world from
the ancient world. Maine gives very powerful expression to this
difference by this construct,
saying that ancient law systems tend to organize rights and obligations
around status, and
modern ones around contract. Now what does this mean? Our whole way of
life is shot through
with contractual relationships. Almost every relationship you have with a
distinction that
I'll come back to is grounded in the idea of contract, of voluntary
agreement to structure
that relationship. And in fact we think of a contract as a kind of
document that you
sign agreeing to buy yourself something, to borrow money, to marry
someone, that you voluntarily
create relationships through an act of will, through an act of conscious
volition. Ancient
societies he says are very different, in that they organize
relationships, rights, and obligations
according to status. In other words that the kinds of rights and
obligations you have in
your community originate out of your person, the the status, the place
that you hold in
that society, not out of any voluntary act but out of the very virtue of
being a you
are. Your relationship to those around you is eminent-- it's part, it's
built into your
place in society so your rights and obligations derive out of your status
not any conscious
voluntary decision that you made but rather your place in that society.
And Maine sees
ancient society is structured by status relationships, and he sees more
progressive societies as
structured by more voluntary contractual. And so he sees this
distinction, which has
gradations of course from status to contract, as the movement of law
systems towards more
sophistication. And in fact he believes that the Roman law system makes
some of this movement
already in the ancient world from a more status based to a more
voluntaristic contractual
set of relationships.
MeasureMeasure
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