Dr. Ram Manohar Lohiya National Law University Lucknow 2014-15
Final draft of jurisprudence On
STATUS TO CONTRACT OR CONTRACT TO STATUS FINDING TRAJECTORY OF THE GROWTH OF INDIAN SOCIETY Submitted to:
Submitted by:
Mr. Manwendra Kumar Tiwari
Yash Patel
Asst. Professor, Law
Roll. No.-158
R.M.L.N.L.U., Lucknow
B.A.LL.B. (Hons.) IVth Sem
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ACKNOWLEDGEMENT The Project in Jurisprudence on the topic, “Status to Contract or Contract to Status: Finding trajectory in the progress of Indian Society” has been given shape and success by the effort of a lot of people who has contributed in its completion. I express my humble thanks to Mr. M. K. Tiwari (Assistant Professor), my subject teacher of Jurisprudence, under whose supervision the whole project has been made and without whose teachings and insights on this case, this project could not have been fructified. I also extend my heartiest thanks to my seniors for their insights into the concerned final draft of the project and helping with me with everything I asked them. The role of the Library Department is also noteworthy. All the staff members helped me generously in getting the materials and information I needed to complete this project.
Contents 2
Introduction................................................................................................................................4 Static and progressive societies: Further development by legal fiction, equity and legislation.6 Movement of Progressive societies (such as India) from Status to contract..............................6 Reversal of Trend from Contract to Status in Indian context:...................................................8 Conclusion..................................................................................................................................9 Bibliography.............................................................................................................................10
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Introduction Sir Henry Maine’s famous generalization of the movement of his time of progressive societies from Status to Contract is a widely accepted as an Axiom of social and legal evolution. Meaning thereby that the rights and duties, capacities and incapacities of the individual are no longer being fixed by law as a consequence of his belonging to a class.1 Maine made a very valuable contribution to legal philosophy by way of historic comparative method. He was an erudite scholar of law. He started his career as a professor of civil law in the University of Cambridge. He was also the law member of the council of governor general of India between 1861 and 1869. This provided him an opportunity for the study of Indian legal system ‘Ancient law’, ‘Village communities’, ‘Early History of Institutions’, ‘Dissertation on Early law and Customs’ are the important contributions made by hi, to legal thought and philosophy.2 Maine made a comparative study of the various legal systems and traced the course of their evolution. According to him, law develops through four stages. In the beginning, law was made by the commands of the ruler believed to be acting under the divine inspiration, as the inspiration by the Themistes in the poems of Homer. In the second stage commands crystallize into customary law. In the third stage, the knowledge and administration of customs goes into the hands of a minority, usually of a religious nature, due to weakening of power of original law makers. The fourth stage was the time of codes. Law is promulgated in the form of a code, as Solan’s Attic code or the twelve Tables in Rome.3 Maine's invaluable work lay chiefly in research into Roman and Hindu Law. His writings almost always convey a feeling of remoteness from the Common Law. In addition to his general interest in the institutions of Roman Law, it is clear that in developing his progressive principle of status to contract he was particularly influenced by the family law of the later
1 RH Graveson, “The movement from status to contract”, Modern Law Review (1941) 261 2 BM Mani Tripathi, Jurisprudence and legal theory (7th edition, Allahabad Law Agency 2005) 34 3 VD Mahajan, Jurisprudence and Legal Theory (8t edition, Eastern Book Company 2007) 573 4
Roman Empire, though his theory of the familial origins of society is based on the wider organisation of many ancient communities.4 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 family dependency and the growth of individual obligation in its place. The Individual 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 organization can only be perceived by careful study of the phenomena they present. But, whatever its pace, the change has not been subject to reaction or recoil, and apparent retardations will be found to have been occasioned through the absorption of archaic ideas and customs from some entirely foreign source. Nor is it difficult to see what is the tie between man and man which replaces by degrees those forms of reciprocity in rights and duties which have their origin in the Family. It is Contract.5 Starting, as from one terminus of history, from a condition of society in which all the relations of Persons are summed up in the relations 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 Western 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 mater. 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 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 child before years of discretion, the orphan under guardianship, the adjudged lunatic, have all their capacities and incapacities regulated by the Law of Persons. But why? The reason is differently expressed in the conventional language of different systems, but in substance it is stated to the same effect by all. The great majority of Jurists are constant to the principle that the classes of persons just mentioned are subject to extrinsic control on the single ground that they do not possess the faculty of forming a judgment on 4 RH Graveson, “The movement from status to contract”, Modern Law Review (1941) 261 5 http://www.panarchy.org/maine/contract.html accessed on 18 march 2015 5
their own interests; in other words, that they are wanting in the first essential of an engagement by Contract.6 The word Status may be usefully employed to construct a formula expressing 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, agreeably 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
Static and progressive societies: Further development by legal fiction, equity and legislation. The societies which do not progress beyond fourth stage (the codification stage) which closes the era of spontaneous legal development are static societies (as Maine calls them). The Societies which go on developing their law by new methods are called progressive. Progressive Societies develop their laws by three methods: legal fiction, equity and legislation. Legal fiction changes the law according to the changing need of the society without making any changes in the letter of the law. Equity consists of those principles which are considered to be invested with a higher sacredness than those of the positive law. It is used to modify the rigour of law. Legislation comes in the last which is most direst and systematic method of law making.7
Movement of Progressive societies (such as India) from Status to contract Maine noted that the development of law in and other social institutions has been same or on identical pattern in almost all the ancient societies belonging to Hindu, Roman, Anglo-Saxon, Hebrew and Germanic Communities as most of these communities were on patriarchal pattern wherein the eldest male parent called pater familias dominated the entire family including all male and female members, children and slaves as also the property. The word of 6 Ibid 7 BM Mani Tripathi, Jurisprudence and legal theory (7th edition, Allahabad Law Agency 2005) 35 6
the pater pater familias was law for them, which they were supposed to follow. There were also some societies which followed matriarchal where in the eldest female in the family the central authority to manage all the affairs of the family was. It is because of his kinship, namely blood relationship with family that person acquired the status. Thus the law of the person was to be determined on the basis of his status. In ancient societies, the Slave, servant, ward, wife, citizen etc. all symbolized statuses which the law recognized in the interest of the community. 8 It was because of this approach that the rights of the individuals were governed by their status in the society that the servants and slaves had no rights in the eyes of the law. However as the society progressed the movement was from the status to contract that is now the individual rights were no longer a subject matter of status. With the march of time the system of pater familias withered away and now the rights and obligations were dependent upon the individual contracts and free negotiations between persons. This led to disintegration of the family system and emergence of contractual relations between individuals. In other word now the individual can take decisions himself without being dependent upon headman of the family.9 The Benthamite Doctrine of individual’s freedom freed the slaves from the bondage of their masters and now they could have rights and obligations like any other person. This led to emergence of a free society with freedom of individual in various spheres of life. The freedom of individual in economic field has been called as the doctrine of lassiez faire which struck a blow to the notion of the status as the basis of law. These changes in the patter of societies led Sir henry Maine to conclude that “the movement of progressive societies has hitherto been from status to contract” he however qualified his proposition by using the word ‘hitherto’ making it clear that this generalization may not necessarily hold true in future.10 In India also emancipation of women from the domination of males, freedom available to individuals in social, economis and political spheres of life, improvement in the condition of
8 NV Paranjape, Studies in Jurisprudence and legal theory (8 th edition, Central Law Agency 2015) 59 9 Ibid 10 Ibid 7
labours and workers etc evinces that there has been a shift of emphasis from status to contract in modern times. The transformation of English as well as indian society from feudalistic pattern to individualistic setup, has brought in its wake a radical change in the status of servants, agricultural workers etc. The incapacities of Hinus in matters of marriage, divorce, succession, adoption etc have been removed by the codification of hindu personal laws in 1955-56. The spectacular changes in Indian laws consequent to the transition from British colonial rule to the independence of our country in 1947 amply shows that there has been movement of Indian society from status to contract. The abolition of Zamindari system, and other graded inequalities, laws against racial discrimination and constitutional mandate enshrined in the preamble and part 3(Fundamental rights) and part 4 (DPSp) stipulate the socio-economic order with the objective of securing for Indian citizens Justice, Liberty, Equality and fraternity are all indicative of progressive movement from status to contract. The contribution of the supreme court of India in achieving this change by securing to the people of India Justice-Freedom under the article 19 of the constitution ensuring socialeconomic and political justice is no less important. Judicial activism and pil have further escalate the movement from status to contract through agrarian, industrial and labour reforms by the process of legislative innovations.
Reversal of Trend from Contract to Status in Indian context: It must, however, be stated that with the advance of time and due to impact of industrialization, urbanization and modernization, new problems of poverty, hunger, ignorance and disease etc have cropped up giving rise to inequalities between people and groups within the society.11Consequently, there came a counter current of reversal from contract to status in the life time of Maine himself, it was realized that the idea of freedom of contract between powerful capitalist and starving labour class led to catastrophic 11 NV Paranjape, Studies in Jurisprudence and legal theory (8 th edition, Central Law Agency 2015) 61 8
consequence resulting in the exploitation of workers, this led to emergence of trade Unionism. The workers now formed their association and instead of individual freedom of bargaining their wages and facilities, their trade unions had the power of group bargaining. That apart several labour welfare legislation minimum wages act, factories act, trade unions act, workmen compensations act, employees liability act, industrial disputes act, payment of bonus act, bonded labour act , contract labour act etc. have been enacted to improve the service, conditions and bargaining capacities of the workers. In order to free them from the unscrupulous industrialists and capitalists.12 With the increasing role of the state in a welfare state, it has assumed the functions of a regulator to secure a social order based on justice, equality, liberty and fraternity. The constitution of the republic of India seeks to promote economic interests of weaker sections of society and ensure them social justice. These progressive welfare measures have forced upon the individual worker a new kind of status where he does not bargain individually but does so collectively thorough associations and unions. Commenting on this reversal of Contract to status the chief justice of Bombay high court in Prakash cotton mills limited vs. state of Bombay inter alia remarked “we must not forget that we are no longer living in the age laissez faire and the relation between the employer and employees are no longer solely governed by the principles of contract. Contractual rights and liabilities are now subject to the principles of industrial law and also principles of social justice.” With the changing role of states, its functions have also radically changes. Now there is greater Interference of the state in the individual’s activities. Even the contracts that an individual enters into in everyday life, have been standardized such as contract relating to electricity supply, water supply,etc and individuals cannot alter the terms of these contracts . Progressive countries all over the world are in favor of the nationalization of services and industries thus reducing the scope for contract at individual level and encouraging it on collative basis through associations firms, unions, etc. Thus it would be seen that there has been a shift of trend from Contact to status in modern times. 12 Ibid. 9
Conclusion It must be however be pointed out that perhaps Sir Henry Maine himself was conscious of the fact that the movement of progressive societies from status to contract may undergo a change with the passage of time when unrestricted freedom of contract may prove detrimental to the interest of individuals and they might have to fight for their rights and liberties collectively in groups. This is primarily the reason why he qualified his statements by using the word ‘hitherto’, signifying that until then the movement of progressive societies was from status to contract thus leaving options open for change in future time to come and incidently , in his own time he witnessed a transformation of society which brought reversal of trend from contract to status with the increasing role of state in the individual activities. Therefore we can conclude that the movement in the progressive societies is initially from the status to that of contract but as the society progresses the change also witnesses as reverse pattern that is of the Contract to that of status where the individual does not necessarily negotiate the contract out of his free will but by the standards and the laws made by the state. In countries like India both trends are visible our fundamental rights also are a part of the movement form the status to contract that signifies an individual has rights which are not dependent upon his social status eg. A labor has equal rights as compared to that of a rich guy. Also with increasing role of state in individual’s life and the outreach of the law. Progressive countries all over the world are in favor of the nationalization of services and industries thus reducing the scope for contract at individual level and encouraging it on collative basis through associations firms, unions, etc. Thus it would be seen that there has been a shift of trend from Contact to status in modern times.
Bibliography Books referred
RH Graveson, “The movement from status to contract”, Modern Law Review (1941) BM Mani Tripathi, Jurisprudence and legal theory (7th edition, Allahabad Law Agency 2005)
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NV Paranjape, Studies in Jurisprudence and legal theory (8th edition, Central Law Agency 2015) VD Mahajan, Jurisprudence and Legal Theory (8t edition, Eastern Book Company 2007) Websites referred http://www.jstor.org http://www.scconline.com http://www.panarchy.org/maine/contract.html http://www.westlawindia.com http://indiankanoon.org/search/?formInput=status+to+contract
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