The Legal Subjection of Women: a Contextualized Reinterpretation of H. S. Maine’s Movement “from Status to Contract”

The article offers a reinterpretation of Henry Sumner Maine’s famous statement that “the movement of progressive societies has hitherto been a movement from Status to Contract.” It argues that this phrase, often understood simplistically as a linear shift toward a society based on contractual individualism, actually conceals a much more nuanced, historically and politically contextualized line of thought. Rather than describing a universal or teleological process, it refers instead to an evolution specific to certain “Indo-European” societies, in which obligations based on family ties gradually give way to obligations freely consented to between individuals. This change occurs not through a rejection of older forms, but through the gradual transformation of institutions (such as family, property, inheritance, etc.). More specifically, the article aims to show that Ancient Law (1861) can be read as an implicit stance in favor of the rights of married women, who, in Maine’s England, were in the midst of a struggle to be recognized as legal persons independent of their husbands. Through his historical study of Roman and English law, Maine discreetly supports the movement advocating for women’s rights to own property, inherit, and enter into contracts independently—rights that would only become a reality with the Married Women’s Property Acts of 1870 and 1882.