>>>>Dr. Kyle Harper: Let's think about what Henry Sumner Maine means by "from status to contract"
by looking at family law, especially Roman family law, because it's in family law
that Maine sees the best example of his idea of a set of rights and obligations that derive
from one's status, one's place in the community rather than through one's conscious voluntary
choices. Contract: our world, our relationships are deeply structured by contract. I'm here
because of a series of contracts that are made between different parties: students pay
the university, university pays me. You could actually go back and trace signatures, the
actual physical contracts in many of the cases. Our world is full of contracts. Every interaction
we have every day is ultimately grounded in some kind of contract, with some important
exceptions. And the most notable exception in our world and the one that would make the
most sense in these terms is to think of the parent-child relationship. The parent-child
relationship is grounded in status. It's rooted in a natural relationship that is not voluntary.
You don't choose your parents, and your parents don't choose you. It's not a voluntary relationship.
And in the way that we structure it in our society is organized around the concept of
minority and majority. In our world there's a magic day in your life when you turn 18
years old, and what happens to you on that day when you're 18? You are effectively free
of parental tutelage. You can buy cigarettes. You can serve in the war, you can vote for
office. You can do any number of things because when you cross that magic line, in our world,
you're considered to have capacity. You have maturity and you've attained majority and
even though there's obviously nothing absolutely magical about that 18th birthday, some people
are a little more mature than others on that day. It's a convention that we have that recognizes
that people reach a certain kind of capacity in which they're ready to be full freely contracting
agents and members of society. When you're 15, you can't sign certain kinds of contracts.
You can't go buy a house, you can't make a mortgage when you're 15. You need certain
kinds of parental consent because you're in the power of your parents. Move back now to
the days of the Roman Empire. There isn't a concept of minority and majority. There
isn't a magic day when you're an 18-year-old full freely voluntary agent of society. Instead,
Roman family relations, indeed Roman personal relations, are organized according to status
and family. Think about the foundations of Roman family law. The central organizing concept
of the Roman family is what is known as patria potestas. That is paternal power, the power
of a father. It is a severe, and in some ways by our standards extreme kind of power. The
Romans have a sort of mythology that the father has the power of life and death although,
in fact, Roman parents don't necessarily have the right to execute their children it's part
of the mythology so great is paternal power. Paternal power is an exceptionally strong
legal power, and it is unending without an active death or will. What this means is that
a Roman father has patria potestas over his dependents that is his children and his slaves
until either he dies, or he chooses to an emancipate them, even a child. Now think of
what this means. It means that there's no moment at which a child is free of his father's
power. If he's a five-year-old he's in patria potestas. If he's a 15-year-old he's in patria
potestas. If he's 25 years old he's in patria potestas. If he's 50 years old and his father
is alive and has not emancipated him he is in the power of his father. That means that
for instance, he can't legally own property. His father can give him property to use. He
can have a house or farm to live on but he can't legally own it if his father has power
over him, has potestas. So an individual can be by our standards a full adult but have
severely incapacitated legal rights, inability to use property, to make certain kinds of
contracts, without the will of the father. This is a vestige of the fact that the Romans
think of their society as organized into households under the power of these kinds of fathers
with extreme legal rights. By the time of the Roman Empire, most Roman citizens marry
in a fashion that's called sine manu. It's a way of saying that the wife doesn't come
into the direct power of her husband because in fact Roman society wives remain under the
power under the patria potestas of their father, and so a wife is of course, married to her
husband but is also still profoundly under the power of her fatherly family, of her birth
family. And this is maintained in the way Roman property is structured in terms of Roman
family law. In the Roman Empire, the spouses in a marriage don't have conjugal property.
They don't have shared property the way that we think of it. The Roman marriage in fact,
has two different property funds. And so wife who brings a dowry into a marriage is still
technically in control of that property. The husband has his property. Now of course they
may effectively on a day-to-day basis use their shared property, but it remains two
distinct kinds of property. Why is this? It's because if the wife dies without having children
to pass on that property on to, the Romans don't want that property passing to the husband
into his male line. That property, the dowry, will revert back to the male family of the
wife. It also makes divorce relatively simple from a legal perspective in Roman society
because there isn't any shared property to be divided up. There is simply two different
funds and if spouses part ways they can simply take their funds with them. And in fact the
Roman law divorce is an extremely liberal divorce regime, in which divorce is relatively
quiet easy to get by either of the partners by unilateral consent. And so Roman law structures
family relationships around this idea of the male line and his power. It has important
effects in the arena of tutelage. Quite often, Roman fathers don't live to be 100 with their
sons 70 years old in their power. In fact, Roman society is a high mortality society
and quite often fathers die. What happens when a father dies? Even if the mother is
living, the children will go under the tutelage of a male relative, and as this law develops
over the course of Roman society it in fact becomes more effectively based around contract.
This is a good example of Maine's thesis. The Roman father has the ability to appoint
a tutor by testament. He can choose and by an agreement, by an act of will can choose
who the tutor to his sons will be. If no tutor is appointed by will, then the, by default,
the nearest male relative-- a mother cannot be the guardian of her own children, because
the children have to be in the control of a male, and a male from the father's line.
So a magistrate will appoint a tutor from the male line if there isn't one. And so this
is an illustration of the way that Roman law structures rights and obligations around a
kind of status relationship. Relationships that arise out of how one is born and the
relationships that are already existing, not acts of will, not contracts, but status out
of relationships that are somehow given in the structure of society itself.