Faculty of law

Batch:2019-2024
Final Project
FROM STATUS TO BRITISH CONTRACT
SUBJECT: SOCIOLOGY

SUBMITTED TO: SUBMITTED BY:

Nongthombam Singh Malvisha Jadeja
Faculty of law, Roll no. 91921040001
Marwadi University BA.LLB(HONS.)
DECLARATION BY THE STUDENT

I, MALVISHA JADEJA, certify that the work embodied in

this project work, entitled “FROM STATUS TO BRITISH
CONTRACT”, is my own bonafide work carried out by me
under the supervision of Prof. Nongthombam Singh of
Faculty of Law, Marwadi University. The matter embodied in
this Project has not been submitted for the award of any other
degree/diploma.
I declare that I have faithfully acknowledged, given credit to
and referred to the authors/ research workers wherever their
works have been cited in the text and the body of the project. I
further certify that I have not wilfully lifted up some other’s
work, para, text, data, results, figures etc. Reported in the
journals, books, magazines, reports, dissertations, theses, etc.,
or available at web-sites and included them in this project
work and cited as my own work.

Place: Marwadi University

Date:
Signature of the student
SUPERVISOR’S CERTIFICATE

This is to certify that work embodied in the accompanying

project entitled “FROM STATUS TO BRITISH
CONTRACT” has been carried out entirely by MALVISHA
JADEJA under my direct supervision and guidance and that
candidate has fulfilled the requirements of the regulation laid
down for partial fulfilment of B.A.LL.B HONS. Degree
examination in the course of Sociology (semester 3), Faculty
of Law, Marwadi University.

Prof. Nongthombam Singh

Professor(Sociology)
Faculty of law, Marwadi University
ACKNOWLEDGEMENT

The success and final outcome of this project required a lot of

guidance and assistance from the supervisor and I am
extremely privileged to have got this all along the completion
of my project. All that I have done is only due to such
supervision and assistance of Prof. Nongthombam Singh. I am
thankful and fortunate enough to get constant encouragement,
support and guidance from him.

Place: Marwadi University

Date:
Signature of the student
Contents

Chapter:1 Introduction...........................................................6
Chapter:2 Static and progressive societies.............................9
Chapter:3 Conclusion...........................................................13
 Chapter:1
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.
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.
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.
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 Roman Empire, though his
theory of the familial origins of society is based on the wider organisation of
many ancient communities.
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.
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 their own interests; in
other words, that they are wanting in the first essential of an engagement by
Contract.
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.

Research objectives

What does status to contract mean

How did it affect India
How does it reversely affect India

Research methodology

The research methodology used is socio-legal in nature. The data used was
already available.

Literature review

One of the first problems confronting a colonial power after establishing de

facto or de jure sovereignty over a new territory is to set up procedures for
settling disputes arising within the dominated society, and to establish a whole
range of rights in relation to property and obligations of individuals and groups
to one another and to the state.
 Chapter:2
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.

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 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.
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 families 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.
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.
In India also emancipation of women from the domination of males, freedom
available to individuals in social, economic and political spheres of life,
improvement in the condition of 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 Hindus 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 social economic 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.
Consequently, 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 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.
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 favour 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 Contract to status
in modern times.
 Chapter:3
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 incidentally , 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.
Example. 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 favour 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 Contract 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)
NV Paranjape, Studies in Jurisprudence and legal theory (8th edition, Central
Law Agency 2015)
VD Mahajan, Jurisprudence and Legal Theory (8th edition, Eastern Book
Company 2007)

Websites

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