Stanford Law Review

Status, Contract, and the Welfare State

Author(s): Manfred Rehbinder
Source: Stanford Law Review, Vol. 23, No. 5 (May, 1971), pp. 941-955
Published by: Stanford Law Review
Stable URL: http://www.jstor.org/stable/1227894
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Status, Contract,
and the Welfare State*
Manfred Rehbindert
I. FROM STATUS TO CONTRACT: MAINE'S THESIS AND ITS
MODERN CRITICS
In the second half of the
Igth century
the idea of
legal
evolution from
status to contract was
strongly
and
widely
held. The thesis was based on
the
writings
of Sir
Henry
Sumner
Maine,
who wrote in a famous
passage
in Ancient Law:
The movement of the
progressive
societies has been uniform in one
respect.
Through
all its course it has been
distinguished by
the
gradual
dissolution of fam-
ily dependency
and the
growth
of individual
obligation
in its
place.
The Individ-
ual is
steadily
substituted for the
Family,
as the unit of which civil laws take
account. The advance has been
accomplished
at
varying
rates of
celerity,
and there
are societies not
absolutely stationary
in which the
collapse
of the ancient
organiza-
tion can
only
be
perceived by
careful
study
of the
phenomena they present ....
[It
is
not]
difficult to see what is the tie between man and man which
replaced by
degrees
those forms of
reciprocity
in
rights
and duties which have their
origin
in
the
Family.
It is Contract.
Starting,
as from one terminus of
history,
from a condi-
tion of
society
in which all the relations of Persons are summed
up
in the rela-
tions of
Family,
we seem to have
steadily
moved towards a
phase
of social order
in which all these relations arise from the free
agreement
of Individuals. In West-
ern
Europe
the
progress
achieved in this direction has been considerable. Thus the
status of the Slave has
disappeared-it
has been
superseded by
the contractual
relation of the servant to his master. The status of the Female under
Tutelage,
if
the
tutelage
be understood of
persons
other than her
husband,
has also ceased to
exist;
from her
coming
of
age
to her
marriage
all the relations she
may
form are
relations of contract. So too the status of the Son under Power has no true
place
in the law of modern
European
societies. If
any
civil
obligation
binds
together
the
Parent and the child of full
age,
it is one to which
only
contract
gives
its
legal
validity.
The
apparent exceptions
are
exceptions
of that
stamp
which illustrate
the rule ....
The word Status
may
be
usefully employed
to construct a formula
express-
ing
the law of
progress
thus
indicated, which,
whatever be its
value,
seems to me
to be
sufficiently
ascertained. All the forms of Status taken notice of in the Law
of Persons were derived
from,
and to some extent are still coloured
by,
the
powers
and
privileges anciently residing
in the
Family.
If then we
employ Status,
agree-
ably
with the
usage
of the best
writers,
to
signify
these
personal
conditions
only,
and avoid
applying
the term to such conditions as are the immediate or remote
result of
agreement,
we
may say
that the movement of the
progressive
societies
has hitherto been a movement from Status to Contract.'
*
The author wishes to
acknowledge
the assistance of Professor Lawrence M. Friedman of Stan-
ford Law School in
criticizing, editing,
and
translating
the text.
t Professor of
Law, University
of
Bielefeld,
West
Germany.
I. H.
MAINE,
ANCIENT LAW: ITS CONNECTION WITH THE EARLY HISTORY OF SOCIETY AND ITS
RELATION TO MODERN IDEAS
I68-70 (i86i).
941
STANFORD LAW REVIEW
This
passage
occurs at the end of a
chapter
called Primitive
Society
and
Ancient
Law, which discusses the transition from archaic
legal
structure to
classical Roman
law,2
and
particularly
the
gradual disintegration
of the
organization
of Roman
family
law about the clan. The thesis has been
generalized
and understood as a universal
principal
of
legal
evolution.3
The
g9th
century regarded
itself as the
century
of
progress.
The usefulness
of Maine's
conception
of
progress
for
jurisprudence
in the
Igth century
was obvious: The
disintegration
of the Roman
clans,
the release of the in-
dividual from the
legal
bonds of his
household,
and the
acquisition
of a
limited
legal capacity represented
a distinct
parallel
to the
disintegra-
tion of feudalism and to the release of the individual from
legal
confine-
ment to his inborn class with the advent of
private autonomy
in the
Igth
century.
The transition from archaic to classical law and the transition
from feudal law to common law are both characterized
by
the fact that
the
legal
situation of the individual is no
longer dependent upon
his social
status in a hierarchic
system
of order
but, instead,
is determined
by
his effi-
ciency
and
capabilities
in a
capitalistic economy,
an economic order that
places
the institution of contract at his
disposal
as the instrument of free
and
responsible
determination of
legal
relations.
But what do "status" and "contract" mean ?
They
are not
precise
defi-
nitions of historical states.
Rather, they represent
what Max Weber called
ideal
types-yardsticks by
which social
reality
can be reduced to bare es-
sentials
and, consequently,
better
analyzed.
An ideal
type
is a dominant
but not exclusive feature of the social
reality
it describes. No
legal
order
has ever been based
exclusively upon
status. Archaic and feudal societies
both allowed some free determination
by
individuals,
but this was not
the most obvious and
typical
feature of their
legal
structures. The decisive
factors were that the individual was
rigidly
bound into a hierarchic
group
and that his
rights
and
obligations
were derived from his status in
his
association
group.
The
legal dependence
of the individual on his social status is
particularly
obvious in archaic
law,
which does not
grant any legal capacity
to the
in-
dividual. In
early agrarian
societies,
law determined
only
the
relations
among different
agricultural
households. The household as a
collectivity
was the sole bearer of duties and
rights.
In later medieval
society,
the
legal
2. Roscoe Pound
originally
wanted to limit Maine's
principle
to continental law. He main-
tained that it could not be
applied
to
Anglo-Saxon
law. Pound,
The End of
Law as Developed
in
Juristic
Thought, 30
HARV. L. REV. 219 (19I7).
But see W. SEAGLE,
THE
QUEST
FOR LAW 254
n.2
(I94I); Isaacs,
The
Standardizing of
Contracts, 27
YALE
L.J. 34 (I9I7);
Llewellyn, What
Price
Contract? An
Essay
in
Perspective, 40
YALE
L.J. 705-06 (I93I).
Later Pound
quietly
abandoned
this
point
of view. See
Pound,
Introduction to R. GRAVESON,
STATUS IN THE COMMON
LAW,
at viii
(I953).
3. Cf. Isaacs, supra
note 2, at
34;
Sales,
Standard Form Contracts, x6 MODERN L. REV. 341
n.9I
(1953).
See also
Cohn,
From Indian Status to British Contract,
21
J.
OF ECON. HISTORY 613-28
(i96I).
[Vol. 23: Page 94I 942
STATUS AND CONTRACT
role of the
guilds
and associations restricted the
legal capacity
of those
individuals who stood outside the
cooperative
or
guild.4
The limitations
on
legal capacities
could not be removed without
dissolving
this kind of
class
hierarchy.
In the
developing
market
economy, however,
the individ-
ual
gradually
came to be
regarded
as an
independent
bearer of
rights
and
obligations.
His
legal capacity
was still more or less restricted
depending
upon
his status within the
family group
or his
relationship
with a
particular
guild
or
association,
but the
change
was noticeable. It is not accidental that
the
concept
of
legal capacity (Rechtsfahigkeit)
as an
equal
attribute of
every
human
being
was first
developed
in German
jurisprudential
litera-
ture at the
beginning
of the
Igth century.5
When the term "status" was first used in
legal terminology
it referred
specifically
to different "levels of
legal capacity"6
but Roman law and
the old
English
common law each viewed status
quite differently.
In Rom-
an law the term "status" was used
originally
to denote full
legal capacity.
The
legal position
of an individual in
possession
of full
legal capacity-
called
caput-was composed
of three elements:
liberty (status libertatis),
civil
rights (status
civitatis),
and
position
of head of a household
(status
familiae).7
Restricted
legal capacity-capitis
deminutio-meant the loss of
one of the three constituent elements of status.
Capitis
deminutio maxima
was loss of
liberty; capitis
deminutio media was loss of civil
rights; capitis
deminutio minima was loss of
legal position
in the
family.8
The Roman
slave,
for
example, possessed
none of the three elements and
consequently
had no status.9 At common
law, however,
status did not mean full
legal
capacity,
but rather a deviation from the norm of
legal capacity,
either
positively
or
negatively. Status, using
the
ordinary person
as a
point
of
reference,
meant either a reduced
legal capacity
or some
special
legal
privilege.10
Because of its connection with the
problem
of
legal capacity,
the term
"status" has
always
been used in civil law to
separate
the law of
persons
from other fields. This
use, however,
resulted in an extension and
change
in the
original concept
of status. A distinction evolved between status civilis
and status naturalis. Status civilis was an offshoot of the
original
Roman
concept
of
caput-degrees
of
legal capacity according
to social
class;
status
naturalis referred to
capacity
based on
physical
and mental differences.
With the
development
of the idea that men have individual
rights apart
from
any group
and of the
concept
that all men are
equal
with re-
4.
See E.
EHRLICH,
DIE RECHTSFAHIGKEIT
44
et
seq. (I909).
5.
See F.
FABRICIUS,
RELATIVITAT DER RECHTSFAHIGKEIT
37-42 (I963).
6. See E. RABEL: GRUNDZUGE DES ROMISCHEN PRIVATRECHTS
14 (2d
ed.
I955).
7.
Id.
8. Id. at
35.
9. Only
after
emancipation
did the Roman slave
begin
to
acquire
status. See DIGEST
4.5.4.
IO. R.
GRAVESON, supra
note
2,
at
5, 7-32 (I953).
May I971] 943
STANFORD LAW REVIEW
spect
to these
rights,1
restrictions in
legal capacity-that is,
the
capacity
to bear
rights-were
converted into limitations on the
capacity
to act or
deal in a
particular legal
manner.'2 Youth, sex,
mental
disability,
and sick-
ness no
longer
eliminated
legal personality,
but
they
did
prevent
free
par-
ticipation
in
legal
transactions
by reducing
or
eliminating legal capacity
in the second sense.13
In ancient
society,
status attached to members of
groups
or
organiza-
tions.
Membership,
however,
was consummated
by
a social act rather than
by
a natural occurrence. Archaic societies often admitted an individual into
a
group only
after a formal initiation rite. His old existence
ceased,
and
a new social
personality
took its
place.
The decisive factor was not the nat-
ural fact of
birth,
but formal
recognition
of the child
by
the head of the
family;
not
physical maturity
or attainment of a certain
age,
but the social
acceptance
into the
group
of
men
capable
of
bearing arms.l4
Medieval so-
ciety
had its own initiation rites in which each
group
used its own
symbols
of status-admission to
cities,l5 guilds,
and crafts with the ceremonies and
symbols
so abundant in the medieval world. These rites had a double
pur-
pose:
first,
to
apprise
each new member of the fact that he was now sub-
jected
to the norms of the
group
and, second,
to demonstrate to the out-
siders the
group's pretensions
and
thereby strengthen
its internal
orga-
nization.16
Vestiges
of the old initiation rites are still in existence
today.
The solemn
graduation ceremony,
the
appointment
of a civil
servant,
the
soldier's oath of
allegiance
to the
flag,
and other formal acts demonstrate
that the status
acquired through
these acts is not a natural but a social
rela-
tionship.
So
only regarding
social differences is it correct to
say
that the
old law-the status law-can be defined as
"jurisprudence
of
personal
in-
equalities.""
When medieval
society
was
replaced by bourgeois
liberal
society,
law
no
longer
fixed the individual in his
place
in a
divinely
ordained order;
instead it aimed to enable him to determine
freely
and
responsibly
his
social
relations as an
equal
member in a
homogeneous society consisting
of
all
II.
"Before the
Igth century
no state had even
remotely
materialized legal equality
for its
citi-
zens and the essential
points
of
property
law for non-citizens in the way this was done by the prin-
cipate."
E.
RABEL, supra
note
6,
at I6. It is not surprising
that slaves were excluded from these
ideas
of
equality.
After
all,
the ancient
economy depended upon
slaves. Max Weber described these
econ-
omies as "slave
capitalism" (Sklavenkapitalismus).
M. WEBER, RECHTSSOZIOLOGIE
149 (I960).
12. See E. EHRLICH, supra
note
4,
at
3.
13.
See R. HUEBNER,
A HISTORY OF GERMANIC
PRIVATE LAW
42 (F.
Philbrick transl.
1918).
Only
in the
early stages
of the distinction did the two losses of capacity coincide-for example,
when
guardianship
was considered a kind of
sovereignty,
the
guardian
could exploit his position for
his
own selfish interests rather than in the interests of his ward. See E. EHRLICH, supra note 4, at 45.
14.
On the
systematization
of initiation rites see A.
JENSEN, BESCHNEIDUNG
UND
REIFEZEREMO-
NIEN BEI NATURV6LKERN 68 et
seq. (1933).
I
5.
See W.
EBEL,
DER BURGEREID ALS GELTUNGSGRUND
UND GESTALTUNGSPRINZIP DES DEUTSCHEN
MITTELALTERLICHEN STUDTTRECHS (I958).
I6.
Cf.
H. KLUTH, SOZIALPRESTIGE
UND SOZIALER
STATUS 56 (I957).
17.
C.
ALLEN,
LEGAL DUTIES AND OTHER
ESSAYS IN JURISPRUDENCE 36 (1931)-
[Vol. 23: Page 941 944
STATUS AND CONTRACT
citizens. The tool to achieve this result was contract.'8 The French Civil
Code of
1803 represents
a sort of
turning point. Vestiges
of feudalism were
fully
eliminated
by
the French
Revolution;
article 8 of the Code ordained
that Tout Francais
jouira
des droits
civiles;
and article
I38
ordained that
Les conventions
legalement formees
tiennent lieu de loi a ceux
qui
les ont
faites.
The individual was thus called
upon
to create his own
rights by
means of contract.
There has been
disagreement
with the definition of this new kind of
jurisprudence
as contract law: It is maintained that the old status was often
based on a kind of contract. The feudal order was inconceivable without
the contract of
fealty;
all
sovereign authority basically
rested on a "social
contract."
Further,
status
law,
as the definition of
leges
barbarorum as
pactus demonstrates,
was created
by
means of a free
agreement
between
the
ruling power
and the various folk communities. Those
areas,
in which
the
importance
of contract has now
vanished-public law,
trial
law,
fam-
ily
and inheritance
law-originally
were
governed by
contract. In a
sense,
the trend here is not from status to
contract,
but rather from contract to
status.19
In
fact,
both "status" and "contract" had a
specific
and
special meaning
in Maine's work. In Weber's
terms,
a
person
must
distinguish
between
contracts of status and contracts for other
purposes.20
The contract that
established a status-whether it be that of
child, father, wife, brother,
master, slave, kin, comrade-in-arms, protector, client, vassal, subject,
or
friend-was a contract of subordination or domination or a contract of
fraternization
by
which "the
person
would 'become'
something qualita-
tively
different than before."21
Exchange contracts, however,
which are
used to
bring
about concrete and
mostly
economic
results,
"have no effect
whatsoever on the status of the
persons
involved.22
Eugen
Ehrlich defend-
ed Maine
against
his critics with the
argument
that law
basically
deals
with the
problem
of how human
society
induces or
compels
the
perform-
ance which it needs for its survival:
Medieval
society
seized on the whole
person
in order to exact from him this
per-
formance;
modern
society
contents itself more and more in
demanding particular
efforts;
wherever
possible
it does not
infringe upon
the individual's
personality.
.
.Things
will continue to move in this direction in the near future.23
I8.
Llewellyn
remarked that in a
status-society,
the contract is a "tool of
change
and of
growing
individual self-determination."
Llewellyn, supra
note
2,
at 716.
19. See R.
GRAVESON, supra
note
Io,
at
36-38.
20. See M.
WEBER, supra note
11,
at III. Carl Schmitt
distinguished
between status contract
and "free contract in the sense of the liberal
bourgeois system
of law and
society."
See C.
SCHMITT,
VERFASSUNGSLEHRE
67
et
seq. (I928).
2I. M.
WEBER, supra
note I
,
at III.
22. Id. at 112.
23.
E.
EHRLICH, supra
note
4,
at 61.
May I97 ] 945
STANFORD LAW REVIEW
Why
did this
change
take
place?
We can isolate
economic, political,
and intellectual reasons. In the
economy,
the
expansion
of the market
resulted in the loss of the household's economic
sufficiency
and reduced
the household to a mere unit of
consumption.24 Simultaneously
the divi-
sion of labor increased and the
guilds
and
corporations
were
replaced by
the
manufacturing bourgeois who,
in the course of technical
develop-
ment, eventually changed
to mass
production
and distribution of indus-
trial
products.
The feudal
conception
of law lost
ground
when
symbols
of status that were
prerequisites
for
legal privileges
became available to
outsiders25
(not
to all
outsiders,
as the
concept
of
legal equality
and free-
dom of contract later seemed to
require,
but,
in
reality, only
to the econom-
ically powerful).26
The
gradual strengthening
of the state
continually
re-
duced the
political autonomy
of the classes to a formal
legal equality
of
all citizens. It did this
by
means of bureaucratization of all
government
functions and the
monopolization
of
legislative power.27 Partly
in re-
sponse
to the increase in state
power,
intellectualism
began
to focus on the
changing position
of the individual. The
ideology
of status was
replaced
by
the
legal philosophy
of
Enlightenment,
and
by
secular natural law-
rationalism.
The rule of contract
law, however,
was not to last
very long.
Men of
the
Enlightenment
believed that once all barriers of status were
abolished,
harmony
would
reign,
but formal
legal equality hardly
had materialized
when it was denounced as the
ideology
of the
bourgeoisie.
Freedom of con-
tract
proved
to be burdensome. At the
very
moment "when contract had
become
firmly
established as the axiom of the modern
legal systems,
the
state as the creator of law had to a
great
extent abdicated its function.
John
Doe rather than
King Henry
is the modern
lawgiver."28
The
regime
of contract forced the individual to
struggle
for his own set of
rights,
but
only
the
economically powerful
could win the
struggle. Only
the
wealthy
had the chance
freely
to
negotiate
their contract conditions.
Consequently,
the
linkage
between the idea of
progress
and formal
legal equality
and
private
autonomy
turned out to be a delusion. The freedom of the
individ-
ual is not
only
a
question
of
legal
structure,
but also a
question
of
con-
crete economic
order, especially
of the distribution of
goods.29
24.
See M.
WEBER, supra
note
II,
at
107.
25.
See H.
KLUTH, supra
note
I6,
at
37-53.
26. See M.
WEBER, supra
note
I,
at
139, 170.
27.
See E.
EHRLICH, supra
note
4,
at
51-53; J. STONE, SOCIAL DIMENSIONS
OF LAW AND JUSTICE
126
(I966);
M. WEBER, supra
note
ii,
at
139.
A detailed description of the legal development
can
be found in i
J.
HEDEMANN, DIE FORTSCHRITTE
DES ZIVILRECHTS IM XIX JAHRHUNDERT (191O).
28. W. SEAGLE, supra
note
2,
at
375.
29.
See K. BETTERMANN,
FREIHEIT UNTER DEM GESETZ
32
et
seq. (1962);
M. WEBER, supra
note
11, at
149-52.
946 [Vol. 23: Page 94I
STATUS AND CONTRACT
Early capitalism
soon
gave
reason to doubt that it in fact
provided
the
larger
freedom. Power and
prestige
are distributed
unequally
in
every
society;
it is a
major question
how far one has to intervene into the
free
social
process
to create a reasonable balance between
inequalities
and
the
ideal of social
equality.
The interventions in the
days
of the
laissez-faire
ideology
were
clearly
not sufficient.
Painfully,
the
bourgeoisie
came
to
realize that
private charity
could not solve social
questions;
state
action
was needed. These interventions in a state dedicated to the rule of law
were
only possible
on the basis of
legal norms;
hence an immense
expansion
of the
legal system
took
place,
and
completely
new fields of
jurisprudence
developed-for example,
labor
law,
social
security law,
food and
drug
law,
laws on medical care and
compulsory education,
and anti-trust law.
Private law was also
"socialized," partly by legislation, partly by judge-made
law. Private
law,
that
originally
had been tailored to the needs of a limited
upper class, gradually
was transformed to serve all social strata. In the
course of this
development,
the
scope
of freedom of contract and
private
autonomy
were
continually
reduced.
A. The Socialization
of
the Law as a
Continuing
Withdrawal
from
Status
Law
The
increasingly
active
regulatory
role of the state has induced
many
authors to
speak
of a return to status in modern law. But this
point
of
view
only
evidences how
dangerous
it is to
argue
from ideal
types
that
are
necessarily
static abstractions of historical
experience
and thus
inappro-
priate
to describe or
explain dynamic processes
and trends. A
categoriza-
tion of modern law as status law contains a
grain
of truth but little
more,
and the idea of a "return" is out of the
question.
I discussed above the loss of the economic
autonomy
of the household
caused
by
the creation of a market
economy,
and the
resulting
structural
changes
that Maine described.
Obviously,
urban man of
today
is less eco-
nomically
self-sufficient than
before,
and the market is more
powerful.
Mass
production
and
consumption
have resulted in a
standardization and
rationalization of
legal
transactions. The
individually negotiated
contract
has been
replaced largely by
form contracts and contracts of adhesion.
Just
as machines have
changed
custom
manufacture to mass
production,
stan-
dardization of contracts has added a
system
of mass transactions to the exist-
ing system
of mass
products.30
Form contracts and contracts of adhesion
therefore have
nothing
to do with the ancient law of
status;
they
are
only
30.
See R.
GRAVESON, supra
note
Io,
at
48;
W.
SEAGLE,
supra note
2,
at
275-77; Llewellyn,
supra
note
2,
at
73I-34.
May 197 ] 947
STANFORD LAW REVIEW
expressions
of a
tendency
toward standardization and
generalization
in-
herent in
every type
of modern commercial
law.8l This
tendency
has been
reinforced in recent times
by
the
exigencies
of economic rationalization.
The mass market's needs have tended to alter the basis on which
legal
obligation
rests from a declaration of will to
protection
of reliance inter-
ests-liability
based on
social-typical
conduct.
I mentioned the
strengthening
of state
authority,
the bureaucratization
of state
agencies,
and the
monopolization
of
lawmaking
as
political
reasons
for the structural transformation of status law into contract law. Here
again
one cannot
speak
of a return to old conditions. The bureaucratization
of the state has further continued. The
expansion
of the state into the field
of welfare will continue. The future of the
monopoly
of
lawmaking
is
not so clear.
Increasingly powerful
associations arise as rivals to state
power.
They
not
only strongly
influence
public lawmaking
but also exercise
great
internal
autonomy.32
Some
political
theorists have
spoken
of
government-
by-associations.33
But because of
social-political
considerations the
power
of the associations is
subject
to considerable
regulation
and
controls,
and
in contrast to the feudal
system,
state control of the sources of
lawmaking
remains
vigorously
alive. Given the
theory
of the
validity
of the norms of
these
associations, they
rest on the
concept
of
delegation
from the state.
Moreover,
the
legal autonomy
of associations flourished
during
the
hey-
day
of contract
law; consequently,
this
autonomy
cannot be the
sign
of a
return to status law.
Also,
individualism as the intellectual base for the structural
change
to
contract
law,
with the
exception
of the beliefs of a few social
romantics,
was
certainly
not
retrogressive
in the sense that the individual was
again
to be
ranged
in a hierarchic
system
with
inescapable God-given inequali-
ties. On the
contrary,
the so-called socialization of
private
law and the
creation of the welfare state reflect an awareness that self-determination
means far different
things
to different social and economic classes. The
period
of contract law was a
period
of class
law,
and economic
inequalities
were
strengthened by
the class-bound
mentality
of the administration
of
justice. Changes
in modern law were meant to
mitigate
these class differ-
ences, strengthening
formal
legal equality
in the direction of substantive
legal equality-that
is, equality
of
opportunity.
Thus,
it is
wrong
to inter-
pret present
legal developments
as a return to status law.
31. Only
two commentators have
emphasized
standardization, though both see standardization
as coincident with the
problem
of status. See W. SEAGLE, supra note 2, at 39; Llewellyn, supra note
2,
at 717.
See also E.
EHRLICH,
GRUWDLEGUNG DER SOZIOLOGIE DER RECHTS 281 et seq. (19I3).
32. Cf. O. STAMMEN,
VERBANDE UND GESETZGEBUNG: DIE EINFLUSSNAHME DER AUF DIE
GESTALTUNG DES PERSONALVERTRETUNGSGESETZES (I965).
33. See, e.g.,
T. ESCHENBURG,
HERRSCHAFT DER VERBANDE?
(I955).
For a different perspective
on the
relationship
between associations and the state see Leibholz, Staat und Verbande, in RECHT DER
ARBEIT 28I (I966).
948
[Vol. 23: Page 941
STATUS AND CONTRACT
B. A New
Definition of
Status
One
question persists:
What are the essential characteristics of
modern
law?
First,
modern law is marked
by
a reduction of the role of
contract.34
In continental
thought, private
law had been marked as the domain
of
private autonomy;
all restrictions on contractual freedom were
referred
to as
"public
law."
Today
this distinction cannot be maintained. Our
mod-
ern "social law" is a mixture of elements
pertaining
to
public
law as
well
as
private
law.
In common law
countries, public
law and
private
law have never
been
distinguished explicitly.
But the
large public-legal
element of social law
has
attracted the attention of scholars. The word "status" came to be used to
refer to this element.
Status is now defined 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
posi-
tion of which the
creation,
continuance or
relinquishment
and the incidents are
a matter of sufficient social and
legal
concern.35
More
simply,
status is described as
"legal
conditions
imposed upon
the
individual
by public
law" or as the sum of
public
law restrictions.36 In the
tradition of continental
law,
"status" served to
separate
the law of
persons
from
property
law;37 "status"
according
to Graveson is now
regarded
as
a characteristic of
public
law in the common law countries.38
This new
understanding
of the status
concept
is not as remote from
continental
thinking
as it
may
seem on first
sight. Georg Jellinek
wrote that
"each
public-legal
claim
originates directly
from a certain
position
of the
individual with
respect
to the state. This
position
. . . can be called a
status."39
However,
the word status cannot
adequately
cover all of modern
public
law. There is freedom in modern law to choose
statuses;
status is no
longer
hierarchic and
hereditary; and,
contrary
to the old status
law,
modern law
endeavors to reduce economic
pressure
and
thereby
to
promote
social mo-
bility.40
In modern law the demarcation between
public
law and
private
34.
Roscoe Pound
speaks
about
"giving up
of the idea of free contract as the
prime agency
of
social control."
Pound,
Introduction to R.
GRAVESON, supra
note
2,
at x.
35.
R.
GRAVESON, supra
note
2,
at 2.
36. Friedmann,
Some
Reflections on Status and
Freedom,
in ESSAYS IN
JURISPRUDENCE
IN HONOR
OF ROSCOE POUND 226
(R.
Newman ed.
I962).
37.
On the use of the Gaius section
(Classification)
in Law of
Persons,
Law of
Property,
and
Law of Claims in the title of the
digest
see DIGEST
I
.5.
I. See also F. VON
SAVIGNY,
VOM BERUF UNSRER
ZEIT FUR GESETZGEBUNG UND
RECHTWISSENESCHAFT
99 (I8I4):
"The
conception
of status is based
upon
the distinction between law of
persons
and law of
property."
38.
See R.
GRAVESON, supra note
io,
at
59, II-4I; Friedmann, supra
note
36,
at
226-28;
Pound,
Introduction to R.
GRAVESON,
note
2,
at xii.
39. G.
JELLINEK, ALLGEMEINE STAATSLEHRE
418 (3d ed.
I9I4).
40.
See R.
GRAVESON, supra note
Io,
at
54;
G.
SAWER,
LAW IN SOCIETY 68
(I965); Friedmann,
supra
note
36,
at
236-37.
May I97I ] 949
STANFORD LAW REVIEW
law has become
increasingly
obliterated.4'
The law of the welfare state is
not
public law,
but a combination of
public
and
private
law.
II. THE ROLE AS A STRUCTURAL ELEMENT OF MODERN LEGAL THEORY
In a short article in
I930,
Gustav Radbruch saw in modern law an
"altered
rank-relationship
of
public
and
private
law,"
an
"interpenetra-
tion of
private
law
by public law,"
and a
"permeation
of individual
private
rights
with social
obligation."42
But
apart
from this
aspect-which
in our
view
only
concerns a
secondary phenomenon, namely
the classification of
law into
public
and
private
sectors-Radbruch also drew attention to an-
other
development:
Social law is based . . . on a structural
change
in
legal thought,
on a new con-
cept
of man: Social law is a law that is tailored to the
concrete,
socialized human
being,
not to a
person
without
individuality
viewed outside his context and de-
tached from his
identity
and his
membership
in the social order.43
The
key concept
in the individualistic
phase
of
law,
fixed on
persons
with-
out
individuality
and
context,
was that of
"person."
The
concept
of
per-
son was a
concept
of
equality,
in which all human differences were leveled
out. A
person
was the
property-owning
as well as the
nonproperty-owning
individual,
the weak individual as well as the
powerful
association. The
term
"person" expressed legal equality, equal
freedom of
property,
and
equal
freedom of contract for
everyone.
In
reality,
freedom of
property
and contract were
essentially
different
depending
on whether these were
in the hands of the
socially powerful
or in the hands of the
poor.
In formal
law,
all
persons
were
equal
with
equal
freedom of
property
and
contract,
but the world was
composed
of the have and the have-nots. Social law now
unites
legal
form and
legal reality:
Behind the
leveling
abstraction of the term
person,
social law makes
apparent
the
individual
particularity,
the social
position
of
power
and
powerlessness:
For ex-
ample,
not
only
does it know the
person,
but also
employer
and
employee,
laborer
and
white-collar-worker;
in criminal law not
only
does it know the
defendant,
but
also the first offender and the habitual
offender,
the correctionable and the hard-
ened criminal.44
Status law considered the individual
only
as a
group
member within a
hierarchy;
it
regulated
the
legal
relations of
groups,
and
consequently
it
41.
See van der
Ven,
Die
Uberwindung
der traditionellen
Zweiteilung
von
8ofentlichem und
privatem
Recht,
besonders an Hand des
Arbeitsrechts,
in 2 FESTSCHRIFT FUR NIPPERDEY, 68I-97
(1965).
42. Radbruch, Vom individualistischen zum sozialen
Recht,
in
I3
HANSEATISCHE RECHTS- UND
GERICHTS-ZEITSCHRIFT
46I (1930). Cf.
H. RADBRUCH,
DER MENSCH IM RECHT
(1927);
H. SINZ-
HEIMER,
DAS PROBLEM DES MENSCHEN IM
RECHT
(I933).
43. Radbruch, supra
note
42,
at
459.
44-
Id. at
460.
[Vol. 23: Page 941
950
STATUS AND CONTRACT
consisted of
grades
of
legal capacity,
and it
expressed degrees
of
privilege.
Contract law
regarded
man as an isolated
individual;
it leveled the
legal
gradations by using
the term
"person"
to mean
equal legal capacity
for
everyone,
and it left the creation of
legal relationships largely
to the individ-
ual himself. The law of the welfare state considers man within his social
context and
again
undertakes the
regulation
of his
legal relationship,
but
it differentiates
according
to the
subject's position
in the social
system.
In
the law of the welfare
state,
the decisive factor is not the
public-legal
ele-
ment,
but the differentiation
according
to social
position.
The kind of
law that differentiates
according
to social
position
of the individual is a
law that involves social roles. If the individual is no
longer
addressed
by
the law as an abstract
person,
but as
employer
and
employee,
as
laborer,
white-collar
worker,
or sales
representative,
as casual or habitual
offender,
the law refers
only
to a concrete
partial aspect
of his social
relationships-
the law relates to man as a holder of a
specific
social role.
Role is a basic
concept
of
sociology.45
We understand role as the sum
of all rules of conduct
imposed by society
on the holder of a certain social
position.
Rules of conduct attach to a social
position,
and role becomes the
point
of intersection between individual and
society.
A role
represents
a
normative
generalization.46
The human
being
is seen not as a
unique
en-
tity,
but as one
among many
holders of the same
position.
He is seen not
as the individual
person,
but as the
employer,
the
salesman,
or the habitual
criminal who confronts us as an
object
of law. From
society's point
of
view, however,
the role
represents
a subset of the individual's
personality,
since the role does not
comprise
the total human
being
but
only
a
partial
aspect.47
Law does not
regulate
the
legal relationships
of the
person
but
rather the
legal relationships
of the
merchant,
the
employee,
or the tenant.
The more the law differentiates
according
to
roles,
the
greater
will be the
specialization
of the
legal system
as a whole into various
subsystems.
The
conception
of the role as a normative
subsystem
means the role is
not sensed as actual behavior so much as a set of
expectations
about be-
havior.48 These
expectations
are turned into norms that
define, among
other
things,
what characteristics one must have in order to assume a cer-
45.
For the standard work in German
sociological
literature see R.
DAHRENDORF,
HOMO Soci-
OLOGICUS. EIN VERSUCH ZUR
GESCHICHTE,
BEDEUTUNG UND KRITIK DER CATEGORIE DER SOZIALEN
ROLLE,
translated as R.
DAHRENDORF,
ESSAYS IN THE THEORY OF
SOCIETY,
ch. 2
(R.
Dahrendorf
transl.
1968).
46.
This
aspect
of normative
generalization already
demonstrates one of the
advantages
attached
to the use of the role
concept
in
legal sociology,
for it
explains
the creation of the
legal proposition
out of
legal
facts as a transition from individual behavior to a behavior
prescribed by society. Cf.
note
31 supra.
47.
The role also
comprises
a
partial aspect
of the social
entity.
This is made evident in the
English
term
"part"
for a role in a
stage play.
48.
See R.
DAHRENDORF, supra
note
45,
at
27, 49;
R.
ROMMETVEIT,
SOCIAL NORMS AND ROLES
85
(1955) (normative exceptions); Sarbin, Role-Theory,
in I HANDBOOK OF SOCIAL PSYCHOLOGY
225
(G. Lindzey
ed.
I959).
May I971] 95I
STANFORD LAW REVIEW
tain role
(so-called role-attributes).49
After it is determined who will be
expected
to assume a
given role,
it is determined what kind of conduct is
expected
of him
(so-called role-behavior).50
Attributes and behavior ex-
pectations together
form a model of conduct. This model of conduct aims
at
conformity
and interaction. Normative
conformity
is the basis for com-
peting
roles. Its basic
principle
is the
categorical imperative:
Act in such
a
way
as
every
other bearer of this role must
act,
so that the social
objective
of the role will be achieved. Social
interaction,
on the other
hand,
is the
basis for
complementary
roles. Its
principle
is the Golden Rule: Act in the
way
that
you,
in the role of
your
social
partner,
would wish to be
treated.5'
For
instance,
an
employer
and his
employee
are bearers of
complementary
roles;
members of an athletic club are bearers of
competing
roles. The role
expectations
can therefore be normalized as
parallel
or
intersecting,
or
even
contradictory,
but in each case
they
leave the
relationship
between in-
dividuals untouched.
It is
easy
to see
why,
in an
age
of mass transactions and therefore of
increased
interaction,
the
importance
of intention and will in the doctrine of
legal
transactions is
steadily
reduced in favor of
protection
of reliance. As
each role is meant at the same time to
govern
the behavior of the social
partner,
the social
partner
in turn must be able to
rely upon
an outward
appearance
that
suggests
the role attributes and role behavior of his
part-
ner in order to be able to act
appropriately.
The modern contract doctrine
of mistake and the treatment of standard contracts are founded on this
basis. The
performance
of a certain role
by
one
person lays
the basis for
his social
responsibility
vis-a-vis the bearer of the
complementary
role.
It
is
possible
that one role
may
bear
upon
several
complementary
roles simul-
taneously.
A
buyer only
relates to a
seller,
but a
professor,
for
example,
relates to
students, colleagues,
scientific
collaborators,
and officials of
the
university
administration. The role
"professor"
is divided into so-called
role sectors that
according
to the kinds of role
expectation
can be
labeled
research, teaching,
or administration.52
Among
these role
sectors,
conflicts
of
expectations
within social roles
(intra-role
conflicts)
are
very frequent.
In German labor
law,
as an
example,
the so-called labor director is
posi-
tioned in such a role conflict situation since he is
appointed
as the
em-
ployee's representative
to the board of directors and has to relate
equally
to the demands of the
employer
and the
employee.
In addition to
intra-
49.
For
example,
see the
regulations governing
merchants in ?? 1-7
of the German
Commercial
Code.
Handelsgesetzbuch
?? 1-7 (Kohlhammer I949).
50.
On the distinction of role attributes and role behavior see N.
GRoss,
W. MASON, & A.
Mc-
EACHERN,
EXPLORATIONS IN ROLE ANALYSIS
60-64 (I958).
51.
See L. PHILLIPS,
ZUR ONTOLOGIE DER SOZIALEN ROLLE
25-31 (I963). See also Spendel,
Die
goldene Regel
als
Rechtsprinzip,
in FESTSCHRIFT FRITZ VON HIPPEL 491 (J. Esoer & H.
Thieme
eds.
1967).
52.
See N. GROss et
al., supra
note
50,
at 62.
[Vol. 23: Page 941 952
STATUS AND CONTRACT
role conflicts there are also inter-role conflicts.53 Inter-role conflicts arise
where the individual holds
contradictory
roles-for
example,
the
practic-
ing
Catholic as a
judge
in a divorce court or where the
expectations
attach-
ing
to the holder of the same social
position
are
differently
defined in
various social
systems-for example,
the
physician's
dilemma when
an
abortion is
ethically
or
medically,
but not
legally, proper.
Resolution
of
role conflicts
by
the individual
depends upon
which action
pattern
he con-
siders as more
legitimate
or which action
pattern
he believes will cause the
more
unpleasant
sanctions in case of deviation.54
Every
role obtains its
effects on the individual
through
two means:
first, through
the
psychologi-
cal act of internalization of its behavioral
expectations,
which are then
considered
right
and
just;55 second, through
a
system
of
positive
or
nega-
tive sanctions.56
According
to the kind of
sanctions,
role
expectations
can
be classified into
"must"-expectations, "should"-expectations,
or
"may"-
expectations.
This classification
corresponds
to classification of social norms
into
law,
custom,
and
usage.57
In a
pluralistic society,
custom and
usage
differ
according
to the
group
that is the source of these
norms,
but the
"must"-expectations
of law refer to one
group only,
i.e. the entire
society,
as it is
represented by
the state.
All of this is evidence that the "role" can indeed be used as a
key
con-
cept
for
analysis
of law.58 It
might
be
argued
that the role
concept
has
always
been a
part
of the law. As
always,
the law of sales has
regulated
the roles of the
buyer
and the
seller;
as
always,
the social
partner's
reli-
ance on the external role
image
has been
protected
to a certain extent. But
it can be demonstrated that in the course of
development
of the law a shift
of accent occurred that
justifies considering
the role
concept
as
particularly
vital for modern
jurisprudence.
The role
concept
was first introduced into
sociology by
the
anthropol-
ogist Ralph
Linton in
I936.59
Linton tied its use to that of the
concept
of
status.60 Status meant to Linton what we thus far have called social
posi-
tion-the
position
of the individual within a field of social relations. Lin-
ton wrote:
53.
On these two
types
of role conflict see R.
DAHRENDORF, supra
note
45,
at
59-61.
54.
On a
theory
of role conflict solution see N. GROSS et
al., supra
note
50,
at
281-3I8.
55.
On socialization
by
means of internalization of behavior
patterns
see R.
DAHRENDORF,
supra
note
45,
at
44.
On the
importance
of this
process
to
legal theory
see
Drath,
Uber eine kohdrente
sozio-kulturelle Theorie des Staats und des
Rechts,
in
I
FESTSCHRIFT FUR LEIBHoLZ
33,
66
(1966).
56.
On the combined action of role
expectations
and sanctions as factors of motivation in the
process
of social interaction see
J. STONE, supra
note
27,
at
x8-23.
57.
See R.
DAHRENDORF, supra
note
45,
at
29-31 (although meaning
law in
general,
Dahren-
dorf
speaks only
of
statutes).
58.
See
J. STONE, supra
note
27,
at
I7;
id. at
24.
See also L.
PHILLIPS, supra
note
51; Drath,
supra
note
55,
at
47-75;
M.
Grawitz,
De l'utilisation en droit de notions
sociologiques, 1966 (unpub-
lished
paper presented
at the 6th World
Congress
of
Sociology
in
Evian-les-Bains,
France).
59.
See R.
MERTON,
SOCIAL THEORY AND SOCIAL STRUCTURE
368 (2d
ed.
1957).
60. See R.
LINTON,
THE STUDY OF MAN
II3-3I (1936).
May I97I ] 953
STANFORD LAW REVIEW
A
status,
in the
abstract,
is a
position
in a
particular pattern
....
. .
[A]s
distinct from the individual who
may occupy it, [it]
is
simply
a
collection of
rights
and duties.
A role
represents
the
dynamic aspect
of a status. The individual is
socially
assigned
to a status and
occupies
it with relation to other statuses. When he
puts
the
rights
and duties which constitute the status into
effect,
he is
performing
a
role. Role and status are
quite inseparable,
and the distinction between them is
of academic interest only.61
Within the
concept
of
status,
Linton also made an
important
distinc-
tion between ascribed status and achieved status.62 Ascribed status is status
accorded to an individual without
any
action on his
part
and due to such
qualities
as inherited
position, age,
or maturation.
Ascription
is often effec-
tuated
by
solemn transition or initiation rites. Achieved status is status ob-
tainable
by
one's own initiative. It is "left
open
to be filled
through
com-
petition
and individual effort."63 A caste or feudal
society
is based
mainly
upon
ascribed
status, generally
linked to irrational
qualities;
an
open
so-
ciety,
in which the various social strata are
reasonably
accessible to
every-
one,
is founded
primarily upon
achieved status.64 Social
mobility depends
upon
the extent to which a
society
links the status of a
person
with his
achievements.
According
to
Linton, periods
of social
change-especially
the
period
after the breakdown of the
European
class
society-were
char-
acterized
by
a
profusion
of achievable statuses.65
Julius
Stone drew on
Linton in
reformulating
Maine's thesis of
progress.
The
development
from
status to contract is more
accurately
"a movement from
'ascriptive'
status,
fixed
by
birth and
family rights,
to status
acquired
on the basis of individual
achievement."66 The modern
trend, resting
in
part upon
the distinctions
of
Linton and
Stone,
is to refer to ascribed status as status and to
describe
status achieved
through
merit and effort as achieved
position.
Thus status
has become
merely
a certain kind of
position
in a hierarchic
system
of
order.67
The
present
development
of law is not free of
problems.
A social
sys-
tem based
upon
achievement makes constant demands
upon
the
individual.
61.
Id. at
II3-I4.
Linton's
terminology
was later adopted by Talcott Parsons, who wrote:
"In
the formal
description
of institutions the
position
of the actor is described by saying that he occupies
a status. When he acts in this status he is said to be
acting
out a role." TOWARD
A GENERAL
THEORY
OF ACTION
40 (T.
Parsons & E. Shils eds.
I951).
Elsewhere Parsons maintains: "Role is the dynamic
aspect
of
status,
the behavior
[sic] counterpart
of the ideal or expected position defined by
status."
T. PARSONS,
ESSAYS IN SOCIOLOGICAL THEORY,
PURE AND APPLIED 43 (I949).
62. See R.
LINTON, supra
note
60,
at
115.
63.
Id.
64.
See W. OGBURN & M. NIMKOFF,
A HANDBOOK OF SOCIOLOGY 377 (5th ed. 1964).
65.
See R.
LINTON, supra
note
60,
at
I29.
66. See
J. STONE, supra
note
56,
at
639.
67.
See S. NADEL,
THE THEORY OF SOCIAL STRUCTURE 29 (I957). See also R.
DAHRENDORF,
supra
note
45,
at
53; Bates, Position,
Role and Status: A
Reformulation of Concepts, 34
SOCIAL
FORCES
313 (I956).
[Vol. 23: Page 94I 954
STATUS AND CONTRACT
His failure can be blamed less and less on
"inborn,
unavoidable
fate."68
No doubt status within fixed social
systems gives
men a
greater
sense of
security.69
But modern
society
offers the individual
possibilities
of self-
realization from which he is barred in static societies.70 Problems
arise,
however,
because the law of roles in
today's
welfare state
represents only
a
practical compromise
between
security
and freedom. Contract law bur-
dened man
by forcing
him to create for himself a
legal position;
the law of
roles now allows him to choose
among positions
and behavioral
standards,
created and
safeguarded by
the state. As social life
constantly
increases in
complexity,
there is a
growing
need for more
preformed
and
safeguarded
roles. This leads to a
growth
in the size and
scope
of the
legal system.7'
Free-
dom of the individual
today
consists less in a freedom of role creation than
in a freedom of role choice. This combination in our social
system
of
"per-
sonal
mobility
with relational
stability"72
is also a characteristic of mod-
ern law: It is a law of roles
preformed
and
safeguarded by
the
state, yet
open
and
subject
to constant
change.
68.
Contrariwise,
such a fate is
nowadays
considered a
"legal
loss which can be claimed."
F.
WERNER,
UBER TENDENZEN DER ENTWICKLUNG VON RECHT UND GERICHT IN UNSERER ZEIT 10-12
(1965).
69.
See H.
KLUTH, supra
note
16,
at
84;
R.
LINTON, supra
note
60,
at
13o; J. STONE, supra
note
56,
at
639.
70.
See K.
POPPER,
I & 2 THE OPEN SOCIETY AND ITS ENEMIES
(I945).
71.
See
Werner,
Wandelt sich die Funktion des Rechts in sozialen
Rechtsstaat?,
in 2 FESTSCHRIFT
FUR LEIBHOLZ
161 (1966).
On the
growing
differentiation of social
positions
see R.
DAHRENDORF,
supra
note
45,
at
24.
72.
G.
SAWER, supra
note
40,
at
69.
May I97I
] 955